David Garland, Chair of the firm’s Labor and Employment Steering Committee, in the New York office, was featured in a Q&A.
Following is an excerpt:
Q: What is the most challenging case you have worked on and what made it challenging?
A: Because of my extensive experience trying employment cases before juries, I am frequently called upon by clients to represent them when it becomes apparent that the case will be going to trial, and their current counsel has not had comparable trial experience. That means that when I enter the case, I have not had the opportunity to craft case strategy from the beginning, and I have missed the chance to ensure that necessary discovery for trial has been completed.
All too often, counsel without sufficient trial experience cannot think ahead as to how the case will actually play out in the courtroom and what is needed to bring about a winning outcome at that stage of the case. Entering the lawsuit in that posture presents many challenges. I have tried a retaliation case where during discovery the parties failed to determine when the employer made the termination decision — obviously a critical point in such a case. I have tried an age discrimination case where the counsel mistakenly took discovery as it was an Equal Pay Act case instead. And, I have had other similar experiences.
But I would say that perhaps the most challenging trial was in a case where I was retained after the close of discovery, and the employer’s decision-makers had not been deposed. That would not have been a problem if I could have called them as witnesses at trial as they could have explained their reasoning and the timing of their decision. But they were no longer within the court’s subpoena power and refused to appear at the trial voluntarily.
Thus, I faced a situation where the plaintiff alleged that the employer terminated her employment because it had learned of her heart condition, i.e., it discharged her employment because of a disability. The timing of the termination and the employer’s becoming aware of the heart condition could not have been worse. The plaintiff collapsed at work, was out for 10 days, and on the day that she returned to work, the employer terminated her employment. If that was not bad enough, the plaintiff had worked for the employer for about 20 years — and the rationale for the employment decision had not been documented. If a case should have been settled, this was it — but the parties were too far apart, and the case had to be tried.
Fortunately, I had one witness — a former employee subject to subpoena compelling her to appear at trial. Although the witness was not involved in the termination decision, she had been told before the plaintiff’s collapse that she would be taking over the plaintiff’s duties. She also had taken certain steps to prepare for taking over those duties — so she could testify why she was taking those steps. Of course, the plaintiff’s attorney objected to this testimony as inadmissible hearsay, but it fell within an exception to the hearsay rule.
The testimony placed the termination decision before the plaintiff’s collapse and before the employer learned of the plaintiff’s medical condition — the most critical issue in the case. Thus, the plaintiff’s disability could not have been the motivating factor in the discharge decision. The jury returned a verdict in the employer’s favor in less than an hour.
The attached file is used with permission from Portfolio Media, Inc.