Don't take it personally - dealing with lawsuits as a company official

HR Magazine, August, 1999 by Ross P. Laguzza

Righteous anger usually leads to a poor legal defense strategy.

Most corporations accept litigation as a cost of doing business. The majority of cases, even very large ones, tend to be managed in a businesslike fashion. Despite a high level of intellectual and financial investment in the litigation, there is little emotional involvement.

This often changes when the suit is filed by a current or former employee. Often the employee targets key individuals in addition to the company itself and alleges some manner of unfair treatment.

Being called unfair raises the hackles of many defendants - particularly those who are convinced they did nothing wrong and that the suit is frivolous. This often leads to a high level of emotional investment in the case, which can lead to trouble at trial.

It's a Matter of Principle

Once individuals at the company become emotionally involved in a case, their judgment about how to prepare for trial becomes impaired. Typically, this impairment manifests itself as a desire to prove to the jury that the plaintiff is an undeserving, wretched human being who has fabricated a tale of woe to cover his or her inadequacies and failings.

Defending the case becomes a matter of principle; exposing the plaintiff's avarice becomes a primary goal. "We won't give that *%@% one dollar!" is a familiar battle cry during trial preparation discussions. The basic trial strategy is to attack the plaintiff, expose any deficiencies and destroy any trace of sympathy between the jury and plaintiff.

This is an emotionally gratifying strategy. Dehumanizing the plaintiff feels good. Attacking the plaintiff feels good. There is nothing quite so psychologically exquisite as anticipating the moment when you will squash an enemy.

The only problem is that this strategy usually fails. And losing big feels really bad.

Outside attorneys, in an attempt to satisfy their clients' objectives, frequently become intoxicated by their clients' emotional involvement in the case. In such situations, attorneys quickly take up the battle cry "Kill the plaintiff!"

And objectivity ends up not in the back seat, but in the trunk, where it is then wrapped tightly in a lead blanket. Case preparation becomes a contest to see who can display the least impulse control. Key company witnesses, if not specifically trained to kill, certainly pick up on the "blood in the water" spirit of the trial team and incorporate attacking messages into their testimony and nonverbal behavior.

The result is a well-oiled killing machine that is revved up and headed for a precipice that would make Thelma and Louise proud.

Why Attack Mode May Be Hazardous

If you haven't figured it out already, the thesis being argued here is that blaming and attacking the plaintiff is a bad idea in most employment law cases. This strategy can so inflame juries that they may make it a point to teach your company a lesson.

Attacking the plaintiff fails even when the employee appears to deserve it. Why? Years of empirical research suggest that, when you strip everything else away, jurors in employment law cases care about one thing: safety.

Concerns about safety appear to form the core of juror experience in employment cases and are a recurring theme in hundreds of interviews with real and surrogate jurors. These interviews show that for a typical juror, there is nothing more threatening than the prospect of an unsafe workplace. Most jurors easily identify with an unsafe workplace, either because they believe they have experienced one firsthand or because they are afraid they might experience one in the future.

It is important to note that jurors are concerned about both physical and psychological safety. For example, jurors could interpret all of the following behaviors as safety threats: unfair or inconsistent recognition and reward, verbal harassment, unwillingness to listen, unwillingness to change, lack of nurturing, lack of proper training and counseling, inconsistent consequences and inadequate warnings.

Because most people derive tremendous psychological value (such as self-esteem) from their jobs, jurors evaluate the quality of a work environment by examining how well it allows people to satisfy these important needs. A workplace that interferes with or undermines this important function is seen as less safe than one that supports and protects it.

And that is important because jurors in employment suits tend to have very high - if not unrealistic - expectations about employers' responsibilities to provide a safe work environment. Jurors always believe the company could have done more to protect an employee from a bad experience.

The issue is not that people serving on juries don't know any better, as many lawyers and lay people suspect. And it is not that jurors live in a fantasy world where employees are held blameless for their transgressions. Instead, jurors tend to define their task as safeguarding the world of work for themselves and everyone else. This mission, distorted as it may be, serves as a powerful filter through which case information is processed and formed into a final verdict.