Courtroom Lessons for the Business Owner/Employer

Posted on January 31, 2012 by Rob Radcliff

          

 

I know it's been a while since my last post, but a trial always gets in the way of blog posts.  So after the dust has settled on the trial I have a few thoughts  on what business owners and employers should always consider when considering the pros/cons of going to trial.  Hopefully these are things that you already knew but better to discuss now than later.  So, off we go:

  1. Loss of Control - The judge and jury will be making the decision, not management.  Unfortunately you can't always predict what the fact finder will do.
  2. Trials are expensive - That's not groundbreaking news, but think about all of the extra costs:  (a) multiple lawyers, paralegals, and support staff working around the clock on the case (depending on size of course); costs for courtroom presentation equipment (rentals); meals for all involved in the trial; and the costs involved in having you employers tied up in a trial.
  3. Trials are a time-suck - Employee witnesses will have to be on call.  Lawyers can never quite tell when the employee will testify.  Of course, a client representative will have to be at trial the whole time.
  4. Trials are stressful for all involved.
  5. People (witnesses) don't always say what they should or what you think they will say;
  6. Things go wrong during trials that you don't expect;
  7. The trial is not the end - there are always filings after the verdict, maybe another mediation, maybe even an appeal; and
  8. Did I mention trials are expensive?

 

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Arbitration Follow Up

Posted on April 13, 2009 by Rob Radcliff

                                        

In a previous entry I addressed the Fifth Circuit Court of Appeals'  recent ruling making arbitration awards virtually impossible to appeal in Citigroup Global Markets Inc. v. Bacon. 

A few weeks later, the U.S. Supreme Court upheld an arbitration agreement that required employees who were parties to a collective bargaining agreement to arbitrate their age discrimination claims.  Michael Moore's discussion of the opinion in the Pennsylvania Labor and Employment Blog is worth a look on this decision.

So, it's a no brainer, arbitration is the way to go for all employment claims, right?  Not so fast.  Jon Hyman of the Ohio Employer's Law Blog offers a dissent.  Jon cites the escalating costs associated with arbitration as a reason to reconsider the process:

In my experience, however, arbitration can prove just as costly as court. More and more arbitrators are allowing plaintiffs to engage in discovery that is nearly as expansive (and expensive) as what is permitted by trial courts. Additionally, employers have to add into the equation the cost to file the claim, which the employer usually shares. With the American Arbitration Association, these fees can run anywhere from $950 to a cap of $65,000. These fees do not include the arbitrators’ time, which often exceeds $500 per hour, and includes all pre-hearing conferences, discovery and motion practice, the actual hearing time, and the drafting of the opinion. It is not hard to see how in many cases the defense costs associated with arbitration outweigh defense costs in a traditional court proceeding.

He goes on to suggest considering using  jury trial waivers in employment agreements.  Though waivers won't keep pre-trial and discovery costs down, they will make trial cheaper and avoid a runaway jury.  Having a judge as the finder-of-fact usually makes things more predictable.  Of course, make sure the jury trial waiver is enforceable in the jurisdiction where it is going to be used.

 I recently spoke with an employment arbitrator who told me he gives the parties wide latitude on the amount of discovery in arbitrations as long at there is agreement.  His ultimate concern is not so much the amount of discovery, but the length of the case.  He aims to resolve all cases within 6 - 9 months.  The less time lawyers have to work on the case, the less fees incurred.

As an aside, the Texas Legislature is considering legislation to limit arbitration in certain consumer transactions.

 

 

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Picking a Jury: The Jury Questionnaire

Posted on February 13, 2009 by Rob Radcliff

The Jury BoxDuring today's Dallas Bar Association Trial Skills Section meeting Lisa Blue gave a great presentation on picking a jury.  Here is the questionnaire (.pdf) she provided for potential jurors. 

Picking a jury is challenging for any lawyer.  Being armed with more information about your prospective jury could make voire dire (jury questioning) more focused.

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