ABA Mock Employment Trial November 8,2007

Case Commentary by Management Attorney

Check Lists: Cross Examination of Plaintiffs Witnesses

in a Sexual Harassment Case

James S. Barber Michelle K. Garcia

Clausen Miller, P.C.

James S. Barber CLAUSEN MILLER, P.C. 10 South LaSalle Street Chicago, Illinois 60603 (312) 606-7712 (Direct No.) (312) 606-7777 (Fax No.) jbarber@clausen.com

ABA Mock Employment Trial November 8 - 10,2007

Case Commentary by Management Attorney Check Lists:

Cross Examination of Plaintiff's Witnesses in a Sexual Harassment Case

James S. Barber Michelle K. Garcia

C la~~sen Miller, P.C.

Introduction.

"Fools Rush In Whcrc Wisc [Persons] Never Tread"

The above might well apply to the defendant here. The plaintiff also may attempt to limit the areas that the defendant can prohe on cross-examination. And, the dynamics at trial, witnesses demeanor, knowledge of minefields from the discovery, as well as defense counsel's own style might cause a defendant either to pursue or not to pursue specific areas. Therefore, what follows are just possible suggestions which may or may not work during the course of the actual trial.

Witness # I : The Plainti@

I. The Big Picture:

Can you attack credibility?

a What was the plaintiff's motive in bringing suit?

Was the plaintiff offended, amused by or indifferent to the "hostile work environment"?

Did the plaintiff suffer damages by the alleged harassment?

Hoolimns: The defindant 's objective may be to show that Wild is an opporttmist. She wus nof acfualb damaged by the alleged harassment, b u ~ , it~sfead, was n~ofi~lutecl by an opportunity to obtain money. Focus could be on the following:

4 Her failure to report adequateIy by not following Hooligan 's policies:

4 Instead, built a case against Hooligans by videotaping aper contacting counsel;

d She subjectively did not perceive harassment (consider whether to contrast her allegation that the discovery of thepeephole felt like rape with her reaction that she was angry that she had to go "all the way upstairs" to chunge in the bathroom.)

d Never mentioned to psychiatrist.

11. The Plaintiffs Background. (Applicable to cases beyond the Mock Trial.)

Is there anything in the plaintiffs background which is relevant and helpful to the defense?

Are there facts showing that the alleged conduct was not unwelcome?

Has the plaintiff filed suit for similar acts after, or made similar accusations at a previous employer?

Did the plaintiff lie on hisher application for employment?

Does the plaintiff have a reputation for untruthfulness?

Has the plaintiff been convicted of a crime involving dishonesty (to the extent admissible)?

Has the plaintiff voluntarily engaged in joking or banter of a sexual nature (including at work, in mails, on-line, in blogs, on the telephone)?

Has the plaintiff engaged in other inappropriate conduct at work or outside work which may be admissible?

Hooli~ans: Severalfactors may he worth highlighting, for exarnple:

d Wildpreviously dated Jimmv Squirrel (and he broke offthe relationship)

g Before the changing room was installed, Wild used the bathroom and changed at home. She cotrld have continued to do so.

d Wild has a difficult relationship with her airrent bqvfriend, as described in ps.ychiatrist 2 notes.

d Expressed need for money to psychiatry.

d No prior mention of harassment at work ro psjchiatrist.

4 Wild destroyed her handwritten notes.

d Cannotfind video camera (andfirst video is not dated).

111. Plaintiffs Awareness of Company Anti-Harassmenl Policies. (Applicable to cases beyond the Mock Trial.)

Aware ofthe company's policies against harassment?

Are they contained in an employee manual/handbook? Are they located el sewhere?

Did the plaintiff sign a copy of the anti-harassment policy?

Are there multiple avenues for reporting alleged incidents of harassment? Does the policy provide an 800 number for complaints?

Was harassment training provided to the plaintiff?

Hooliaans: On cross-examination, rhe company ma.v establish that Wild:

d Received Hooligan's policy ugainsr hurussment, understood it and signed it.

d Knew she could make reports of harassnrent to 0 Neil (the General Manager). other managers, or Human Resources.

d Was aware that there was an 800 numberprovided by Hooligans to make reports.

IV. The Plaintiffs Utilization of Company Anti-Harassment Policies. (Applicable to cases beyond the Mock Trial.)

Did the plaintiff fail to report the alleged conduct?

Did the plaintiff delay in making a report?

Did the plaintiff fail to follow-up on the reporl?

Did the plaintiff utilize the policy's multiple channels for reports or call the 800 number?

Did the plaintiff othenvise fail to avoid harm?

Hooligans: On cross-examination, the defense may attempt to establish that Wild did:

d Not make any initial reports to anyone other than a shift manager. FfJJzen she directly told O'Neil, the hole was repaired.

d Not indicate to 0 'Neil that she felt harassed us a result of the hole, only that she was inconvenienced by having to go "all the way upstairs" to the bathroom to change.

d Not follow-up with anyone in munugement about the holes and, instead, continued to change in the changing room.

Not utilize multiple channels for reporting or use the company's 800 number.

d Not report lewd comments or touching by kitchen staffor assistant managers to O'Neil or upper management.

V. Plaintiffs Reaction to the Incident:

What was the plaintiffs initial reaction? Was it "normal?"

What did the plaintiff do immediately following the initial alleged incident?

Did she make jokes about it? Was she upset about it? How did it affect her?

Hooli~ans: On cross-examination, the company may emphasize:

4 Wild 'sfirst reuction was to make a videotape and to contact an attorney within days of thejirst alleged 'peephole" incident.

4 The attornq told Wild to file an EEOC charge, but Wild did but chose to wait.

d Wild now claims she felt violated as a result of the hole, but she did not warn her fellow Hooligans girls.

d The Hooligans girls made jokes about the holes.

)/ Wild made notesfor her attorney, but did not provide the information to Hooliguns to end the alleged harassme?it.

d Destroyed her handwritten notes.

VI. Plaintiffs later actions. (Applicable to cases bcyond the Mock Trial.)

Do the plaintiffs actions demonstrate that s/he did not subjectively perceive the conduct to be harassment?

Did the plaintiff continue to work for the company?

Was the plaintiffs job performance affected by the alleged conduct?

What are the results of a private investigation of the plaintiff?

What does the Rule 35 examination show? What do medical records show? [See also, Check List for Forensic Psychiatrist, below]

Hooli~ans: On cross-examination, the company may highlight:

d Afier an unrelated leave of absence, Wild voluntarily returned to work at Hooligar~s.

d Wild's therapist 's notes show she did not discuss the alleged incidents with her therapist, though she was undergoing therapy regarding her family, her boyfriend and other issues.

d The on& mention Wild made to her therapist of Hooligans wns a comment that she expected to receive money from Hooligans as a result of the lawsuit.

VII. inconsistencies in plaintiffs statements. (Applicable to cases beyond the Mock Trial.)

What did the plaintiff previously state to others (doctors, therapists, co-workers, management, other witnesses)? Is it inconsistent with her present position?

VIII. Plaintiffs motives. (Applicable to cases beyond the Mock Trial.)

Is the plaintiff angry with the company or her supervisors which may have motivated her allegations?

Is the plaintiff upset about a poor evaluation?

Does the plaintiff have a personal history with the alleged harasser?

IX. Other suggestions. (Applicable to cases beyond the Mock Trial.)

First elicit favorable testimony, before attacking credibility

Think about whether attacking the plaintiffs credibility will be helpful, or whether it will create sympathy for the plaintiff with the jury

Use leading questions

Do not ask questions to which you do not know the answers

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Witness #2: The Union Steward

Hooli~ans: On cross-examination, defense highlight:

d Do not go over ground that has been covered by counselfor the union.

d Isjuther cross-examination necessary?

d Keep cross-examination as shorr as possible.

d Gel admissions lfrom deposition or prior trial testimony.)

d Establish that union steward follows rules of collective bargaining agreernent/grievance procedures.

d Show that, under collective bargaining agreement provisions, grievances are not altowed against co-employees.

d Establish that theplaintzrs complaint was directed solely against co-employees (kitchen staff), and not management.

d I/applicable, show that the union steward has not shown bias toward his own raciaNethnic group in past filed grievances against other members of the group to which she belongs).

Witness #3: The Forensic Psychiatrist

X. Pre-existing Psychological Conditions/Altemative Causes of Symptoms.

Does the plaintiff suffer from any conditions which would skew her subjective perception of the conduct or which would account for the plaintiffs alleged psychological damages? For example, has s h e experienced any ofthe following:

Depression;

Post-traumatic stress disorder;

Deaths of family, friends;

Job changes or career issues;

Financial issues;

Issues with children or fertility;

Rape, incest or other sexual trauma;

Other illnesses;

Is the plaintiff a pathological liar?

Is or was the plaintifftaking medication which would affect hislher judgment or perception?

XI. Bias by Expert.

Was the psychiatrist hired just for purposes of litigation?

Is the expert a practicing doctor, or a professional witness?

Is the number of times the expert has testified for plaintiffs disproportionately high, as compared to times testifying for the defcnsc?

XII. Credibility Attacks.

Are the expert's credentials subject to attack?

9 Is s h e a graduate of the schools/programs which s h e claims?

9 Can all items on the expert's curriculum vitae be verified?

Has the expert been sued, disciplined or othenvise investigated?

XIII. Prior Opinions.

Is any of the expert's testimony inconsistent with prior testimony?

Has the expert given opinion testimony previously (in another case or in a publication) which is inconsistent with hislher present opinion?

XW. Attacks on Methodology.

Are any steps of the methodology subject to attack?

How long did the expert examine the plaintiff? - What topics were covered?

Is the expert aware of all the facts (including those facts which are not favorable to the plaintiffs case)?

XV. Plaintiffs Medical Records during the alleged Harassment.

Did plaintiff complain of the alleged symptoms to hisher doctor or therapist?

Did the plaintiff talk to hisher doctor or therapist about any harassment?

Did the plaintiff reveal monetary motives in bringing suit?

Does the onset of the alleged symptoms correlate to the liming of the alleged harassment?

XVI. Other suggestions:

Do not let the expert repeat unfavorable testimony

Use leading questions to direct the testimony

Make any positive points before attacking credibility

James S. Barber CLAUSEN MILLER P.C. 10 South 1,aSalle Street Chicago, IL 60603 (312) 606-7712 (Direct No.) (312) 606-7777 (Fax No.) jbarber@clausen.com