Story — continued from Previous Page
Figure 13
instruction which stated: “Benefit Solutions was the agent of Defendant Quest Diagnostics, and, therefore, any act or omission of Benefit Solutions was the act or omission of Defendant Quest Diagnostics.” After displaying and reading this instruction to the jury, we illustrated what it meant in a simple graphic (Figure 13), which conveyed that Benefit Solutions and the defendant employer were linked or fused together as one and, in fact, were “one and the same” for this case. The company witnesses not only tried
to pass responsibility to the company’s admitted agent (Benefit Solutions), but when this attempt began to flounder, they also tried to blame the plaintiff for not essentially begging for her job back after her termination. To counter this attack, we used another series of visuals. First, we illustrated through Figure 14 what the company had tried to do: essentially, point the finger of blame to itself (Benefit
Figure 14
Solutions – its agent). With a touch of humor, we displayed a graphic of a man with a confused look pointing fingers in two directions. Immediately next to this image was the link or chain image from Figure 13, which reminded the jury that the employer was essentially trying to blame itself. We then transitioned to Figure 15, which illustrated that once the company’s witnesses failed in their attempt to blame Benefit Solutions, they joined forces and now tried to point the finger of blame at the plaintiff. With this backdrop, the jury could see that this attempt to shift blame now to the plaintiff was just another attempt to avoid respon- sibility – just like the attempt to imply to the jury that they shouldn’t hold the com- pany responsible for the conduct of its admitted agent (Benefit Solutions).
•Visually presenting damage themes The damages in our case were eco-
nomic damages for lost wages and bene-
Figure 15
fits and emotional distress or human loss- es. We had no physical injuries or no major current impact on our client’s life that could be illustrated by techniques like a “day in the life” video. Nonetheless, when we turned to our damage presenta- tion, we continued to try to use visuals to illustrate key themes. For example, a major obstacle was
the fact that pre-termination our client was in a severely depressed state – indeed, she was suicidal. The jury was instructed on the “eggshell plaintiff” doctrine. After displaying and reading that instruction to the jury in closing, we displayed Figure 16 – which is an image of solid steel. With Figure 16 displayed, we talked about the fact that some people are simply made of steel, they can endure anything, and bounce right back. Then displaying Figure 17, we talked about what the law calls the “eggshell plaintiff” – someone who is already weakened, vulnerable and in a more fragile state. From these images, we transitioned to talking about the effect of our client and how losing her job (her only source of stability) was kicking someone vulnerable when she was already down. We had another serious damage
problem in the case. In this wrongful-ter- mination case, our client had honestly admitted on the stand that she basically hated her job. Similar references were found in her medical records and, in fact, while in the outpatient program following her discharge from the psychiatric ward, she talked about hopes of finding another
Figure 16 40— The Advocate Magazine APRIL 2011 Figure 17 See Story, Page 42
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