Story — continued from Page 40
job. Obviously, arguing for emotional-dis- tress damages flowing from a termination from a job one didn’t care for isn’t the easiest task. To do this, we tried to put her dislike for the job in context. Our client had testified that after the mergers and consolidations, she basically felt like she was a person in a forest of specimen processors – just another employee ID number instead of a person whom the company cared about. While displaying Figure 18, we talked in closing about the fact that someone can feel lost in a crowd at work, not like the environment, yet still suffer tremendous consequences from their paycheck and stability that a job brings being ripped away simultaneously. We felt that Figure 18 conveyed that our client’s feelings were understandable, but
that didn’t necessarily mean she couldn’t and didn’t suffer emotionally from the consequences of losing the job.
•Procedural issues Different courts and different judges
have widely different rules about the use of visuals. Where possible, I prefer to use as many as possible in opening statement, so the themes they illustrate will resonate throughout the trial. But many courts – particularly federal courts – require the parties to exchange this kind of informa- tion well before trial in order to address any issues of admissibility or improper argument. Since providing the visuals can tip off the other side to your strategies, it may sometimes be better to save the visu- als for closing argument. By then, issues of what evidence is admissible have been
Figure 18
resolved and the defense cannot com- plain that you are making an argument. In the case discussed in this article, the only visual I used in opening was Fig. 9.
Conclusion Many employment trial lawyers use
timelines, organizational charts, key play- ers’ charts and other more traditional forms of demonstrative evidence in employment trials. But even our fact- intensive employment trials that naturally lend themselves to timelines and the like can also benefit from images like the ones shown throughout this article to teach and reinforce key themes. Doing so not only helps the jury understand, conceptu- alize and retain the key themes, it also provides an unexpected bit of entertain- ment so that the jurors hopefully enjoy the process.
David deRubertis is the principal in The
deRubertis Law Firm, PLC where he focuses on employee rights trial work, including serv- ing as short notice lead trial counsel in employ- ment matters. In 2011, Mr. deRubertis was rec- ognized as a Top 100 SuperLawyer for Employment Litigation. In both 2009 and 2010, he was recognized by the Daily Journal as one of the Top 10 plaintiff-side employment lawyers in California. And, in 2009, he was nominated for CAALA’s Trial Lawyer of the Year. In addition to being an active CAALA member, he is a Board Member of both CAOC and CELA.
www.aldavlaw.com 42— The Advocate Magazine APRIL 2011
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