Employment discrimination cases are increasingly getting past
summary judgment and into trial. Too often, the defense focuses
primarily on what the company did or did not do. This narrative
plays right into the plaintiff's hands—the more the
jurors talk about the company's actions (or inaction), the more
opportunity for them to pick it apart. A winning strategy requires
the defense to change the narrative, in subtle and respectful ways,
leading the jury to instead focus on the plaintiff's
conduct.
Employment Cases Must be Prepared for Trial
Legal scholarship of the last 20 years has bombarded readers
with reminders that trial, and the jury trial in particular, is a
dying art in this business. It takes little searching to find
entire books on the "Death of the American Trial" or law
review articles opining on "The Decline of Civil Jury
Trials." While there is no doubt that the likelihood of
reaching civil trial in general has dissipated, that trend is
