As trial lawyers representing employers, we have learned a great deal over time about how jurors tend to think about employment cases. Yet watching a jury deliberate during a mock trial — behind a one-way mirror — is always a wake-up call. It provides an unvarnished look at how jurors actually think and talk about employment claims behind closed doors.
Recently, we conducted a mock jury session on behalf of a client in an employment discrimination and retaliation case. In the day-long exercise, three separate mock juries heard the exact same summaries of both parties’ evidence, including video excerpts of testimony from key witnesses, and then deliberated and reached a verdict.
The results, while different in each room, raised many of the same themes that we have seen in other mock jury settings. Below are 10 key lessons from the mock juries, as well as strategies for how employment counsel can shape a trial narrative in light of jurors’ views.
- But he worked there so long! Jurors empathize with long-term employees.
Legally, an at-will employee remains at will no matter how long he has worked for the employer. But juries may not agree.
Many jurors think that long-term employees should get special protection whether there is a law requiring it or not. In the mock deliberations, jurors repeatedly said things like: “But he had been a good employee for a long time.” They felt he was owed extra chances to turn around his performance. They wanted the employer to take special care with him.
Because of this potential bias, go ahead and acknowledge a plaintiff’s long tenure at the company. Express the employer’s appreciation for those years of service. At the same time, explain why, despite that long tenure, the plaintiff’s conduct became unacceptable.
Maybe the plaintiff’s performance declined over time — make that clear. Maybe an egregious instance of misconduct necessitated termination even though it had never happened over the many prior years he had worked for the company — explain why.
Emphasize extra chances the employer gave the plaintiff to turn around performance. Highlight the ways the employer treated the plaintiff well during his years at the company.
- Jurors are wary of human resources.
It will not come as a surprise that many jurors are suspicious of in-house lawyers, but some may be surprised to learn that they are also suspicious of HR. Yet HR professionals are frequently witnesses in employment cases, and there is often a lot of evidence of their interactions with both the plaintiff and business leaders.
In one mock deliberation, a juror said: “HR is never going to help the employee; their job is always to protect the company.” In response to that sweeping generalization, the rest of the jurors nodded and laughed approvingly. Jurors in the other two mock sessions expressed similar thoughts. Jurors shared stories of their own, often negative, interactions with HR in their workplaces.
In response, humanize the HR witnesses who will appear before the jury. Make sure the jurors are reacting to those individuals in front of them, as opposed to their generic views of “HR.”
Have HR witnesses give a nuanced explanation of their training and their role. Have them explain that they are a resource for both the employee and the managers, and that they ensure that the company follows law and the company’s own policies.
Emphasize how HR treated the plaintiff consistently with others at the company, gave the plaintiff notice of his performance shortcomings, and tried to help the plaintiff.
- Jurors want employers to follow the progressive discipline policy … to the letter.
Jurors are suspicious of even the slightest deviation from a company’s progressive discipline policy. Plaintiffs’ lawyers try to exploit that by arguing that deviation from the policy is evidence of discrimination.
Regardless of how carefully a progressive discipline policy is worded — with caveats that the employer can go straight to termination if warranted and skip steps as circumstances require — jurors largely prefer to see all of the disciplinary steps followed in sequence before an employer decides to terminate employment.
For that reason, in our counseling practice, we recommend that employers reconsider whether to have a progressive discipline policy at all if they do not intend to follow it to the letter.
The mock jury sessions highlighted a nuance to that general rule: the mock jurors were very interested in the apparent decision to deviate from the policy and skip to an accelerated termination. They debated at length whether and why the company had deviated and whether any deviation was due to a discriminatory motive.
Knowing that predisposition, spend time explaining to the jurors what the policy actually says; why the employer took the action it did in the sequence it did; why it was well justified; and why, given the context, the employer acted consistently with the policy.
Even if the plaintiff does not emphasize the point, jurors are likely to wonder when they suspect the company did not follow every step of the policy, so it is best to address it head on.
- Jurors will scrutinize the plaintiff’s performance and conduct.
In many of our cases, the mock juries also scrutinized the plaintiff. They were receptive to evidence that the plaintiff himself bore responsibility for his performance and should have foreseen the discipline and ultimate termination.
They made statements like: “If I had caused my company to lose this much money, I would definitely have been fired.” One said: “If I had refused to attend a meeting with my boss’s boss, I would be gone.”
They relied on, and shared with each other, their own life experiences as to what conduct was acceptable in their own varied workplaces, and what were employers’ legitimate expectations about performance and results. They also viewed the plaintiff’s own video testimony critically, with one juror dismissing it as “feelings over facts.”
For that reason, emphasize where and when the plaintiff made poor choices, what the logical consequences of those choices were, and why the employer felt that the performance failures or misconduct was significant.
Point out all the different choices the plaintiff could have made to avoid discipline or termination, maybe in a dynamic visual flowchart illustration. Be clear about what was conspicuously missing in the plaintiff’s testimony and explanations for his behavior. Chances are the jurors noticed it too.
- Jurors need timelines to keep track of the facts.
We are always impressed by how juries can process a lot of new facts in a short amount of time. However, watching a jury deliberate also reveals that jurors can get confused about details, especially about the sequence of key events and which came first in a series of rapid-fire, crisscrossing emails.
In the mock deliberations, we had a whiteboard in our observation room on which we tracked what they were confused about. Let’s just say there were more than a few entries.
For that reason, we regularly use color-coded timelines as demonstratives during trial to demonstrate clearly the chronology of events and eliminate any confusion. Make them bright, eye-catching and compelling. Resist the urge to include every event; limit it to just the events that the jurors must remember.
With the court’s permission, leave the timeline up as witnesses testify. Reinforce the timeline and use any visuals again in the closing argument. The sequence of events is often critical in employment cases, so leave no room for confusion.
- Jurors don’t like hasty decisions.
Jurors do not like when they believe that an employer or manager acted too quickly. Whatever the law says, jurors prefer to see a plaintiff have multiple chances to turn around performance or make amends for misconduct.
Our mock jurors thought the company moved very quickly in deciding to terminate and were suspicious of the haste. “And then, bam — he was gone!” one juror said, prompting nods. Even defense-oriented jurors openly shared that they wished the managers had given the plaintiff more time or reflected longer before making a termination decision.
Knowing that predisposition can help inform trial strategy. Sometimes employment decisions need to happen quickly: a plaintiff’s poor performance or misconduct is causing financial losses or safety issues, or affecting co-workers. Make sure that jurors clearly “get” those impacts.
If time was critical, say so and explain why. Have customers, co-workers or others testify directly about the financial, safety or morale impacts of the plaintiff’s conduct. Help the jurors put themselves in the shoes of the decision-makers and not just the plaintiff.
- Hey, that’s not fair!
Jurors may hear “blah, blah, blah” when the lawyers focus on the claims, defenses and legal standards. Jurors want to get down to brass tacks: What is fair?
Throughout the three sets of mock deliberations, jurors’ discussions focused on whether the company’s decisions seemed fair and whether the plaintiff was fair in the way he interacted with his managers. Was it fair for the plaintiff to cause the company to suffer large losses due to negligence and still expect to stay employed? Did the managers really give the plaintiff notice of the problem and an opportunity to improve? Were the managers fair in their expectations of the plaintiff? Were the plaintiff’s demands of the employer reasonable? Was the ultimate decision to terminate fair in light of all the circumstances?
Knowing that that will be a focus for jurors can help frame the trial narrative. Consider using the touchstone of fairness in the opening statement and closing argument. With witnesses for the employer, explore why the managers took the actions they did and why they concluded that those actions were the right and fair ones.
- A careful juror or two may do a dramatic reading of the jury charge.
While fairness is the touchstone, jurors may also review the jury instructions carefully.
In our mock jury sessions, the jurors had a copy of the charge, consistent with many judges’ practice. While not all jurors focused on it in detail, a few did and then read the key language aloud to the group.
One juror then interpreted the language in his own words, saying: “This means that if there is even one iota of discrimination, we have to find for the plaintiff.” The whole room stopped to re-read the section of the charge.
So it is critical to review every word of the charge carefully and object vigorously to any erroneous or prejudicial instruction in the charge conference. Maybe the most important point is to make sure that the charge is written in a way that a lay jury can easily understand.
Remember that sometimes jurors are just listening to the judge read the charge and are not rereading it themselves, so resist the urge to make it long and too complicated. If there is a key aspect of the charge on which you want jurors to focus, note it in the closing, give them a page number if you have it, and show it to them in a demonstrative.
- Liability? Damages? What?
While the charge will instruct the jurors to consider liability and damages separately, and not to consider damages at all unless they find the company liable, it does not always work that way in real-life deliberations.
We watched one of the three mock juries reason its way through the special verdict form to find no liability, realize that the plaintiff would then recover nothing, and go back and conduct a re-vote on liability so it could award some damages. Though the jurors did not really think the employer had done anything wrong, they wanted to give the plaintiff “a couple years of back pay.”
Jurors may also conflate elements of damages. The mock jurors who were inclined to grant damages did not always distinguish carefully between categories of damages. Jurors said things like: “I don’t think we give any emotional distress; that’s included in the back wages” or “emotional distress should be about the same as the back wages,” regardless of the law that would say otherwise.
Head that off at the start with effective jury selection, removing jurors who believe that any plaintiff (regardless of the merits) is entitled to at least some money, and those who are inherently more inclined to find for a plaintiff than an employer or company.
At trial, focus on making jurors comfortable that a defense verdict, with no damages, is the right and just verdict. Humanizing the managers who are the face of the employer often helps jurors see the employer not as a faceless company but as one or more individual managers who made reasonable business decisions and who don’t deserve an adverse verdict.
Constructing a verdict form and jury charge that highlight the need to decide liability first and separately may also help ensure that the jury understands and values the distinction. Make clear what the different categories of damages are, and arm the jurors with strong arguments as to how to think about each category separately and where the plaintiff failed in his burden of proof on each.
- Tell the jury the why.
Jurors are not always burdened with the burdens of proof. As much as the jury instructions might say the plaintiff has the burden to show discrimination or harassment in an employment case, jurors may not care. Jurors want the employer to give a reasonable and credible explanation as to why the company terminated the plaintiff or took other adverse actions.
In all three mock juries, the deliberations focused on spirited discussion of what was the real reason behind the employer’s actions. Jurors relied on their own credibility judgments and life experiences to make inferences as to the motivations behind both the plaintiff’s and the managers’ actions.
One juror said: “Maybe the job was just too big for him.” Another offered: “I think they fired him because they didn’t like him, not because of discrimination.”
Offer a compelling narrative as to the legitimate business reasons for the adverse actions at issue. Arm the jurors with the specific reasons why the employer acted.
In the mock sessions, we saw the defense-leaning jurors adopt that narrative and use it to persuade fellow jurors.
Ensure that witnesses are ready to explain the employer’s decision in clear, relatable and consistent terms. Consider demonstratives that will amplify the legitimate reasons. Reiterate those themes in closing so that the jury carries them into the deliberations.
Dawn R. Solowey is senior counsel and Lynn A. Kappelman is a partner at Seyfarth Shaw in Boston.