Stop Shooting Your Defense Lawyer in the Foot

It might be hard to believe this, but employment defense lawyers are not as amazing as they would like you to believe. Trust me, I would know. I’m an employee rights lawyer in California and I battle employer-side attorneys all day long. While I don’t feel bad for them when they screw up, I do have a little professional empathy because sometimes it’s not their fault. Sometimes it’s HR’s fault.

I’m constantly amazed at how defense lawyers are treated like superheroes or mystical beings of salvation by company management. They’re not. Their job is to take the facts of what happened and make the best of it. By the time a company gets sued for wrongful termination by an attorney like me, the fact pattern is complete. That means that most of the ammunition that you can give your lawyer to put up a defense is already set in stone.

Obviously, this means that you need to think ahead before you fire someone. Here are some ways to help your lawyer as opposed to handicapping him or her.

Use common sense in performance management

Every HR professional knows that write-ups and performance reviews can be enormously helpful in a lawsuit. They can show that the employee was disciplined, wasn’t doing a good job, needed improvement, or wasn’t getting along with people. Write-ups are a way to tell the jury and judge about the status of that employee’s performance before the lawsuit was started.

But, if not done properly, write-ups and performance reviews can give your defense lawyer nightmares. Here are two ways HR’s write-ups can give your defense lawyer gray hair:

  • Timing – Stop giving write-ups immediately after the employee complains about a protected activity. I can’t tell you how many times recently terminated employees have called me and said, “They wrote me up the day after I complained about harassment.” The timing with these write-ups looks terrible.
  • Scorched Earth – My good friend Robert Odell, also an employment lawyer, won $1.2 million in 2014 for his employee client. Part of the reason the verdict hit seven figures is that the company gave the employee a 120-page write-up. 120 pages! It was as if CSI had investigated the employee for quadruple homicide. It was complete overkill and he convinced the jury that it was further evidence of harassment.

The easy way out of this is to have standardized forms to fill out for write-ups and annual performance reviews. While I understand that some HR professionals don’t want performance management to make employees feel like losers, you must be consistent and honest in your write-ups and reviews.

HR text messages are discovery gold

Human resources personnel are pretty good about not putting unnecessary information in emails. But that is not the case for text messages. Young HR professionals don’t really think about text messages. But trust me, they are discoverable even if they were sent on a personal phone. So it would be wise to stop texting anyone about anything related to your duties in HR.

More importantly, never advise company employees to delete text messages. I recently had a trial where the company CEO had texted with several people about the decision to fire my client. But then he deleted all the text messages. It looked terrible to the jury that all of those text messages were destroyed.

Finally, emojis can get you in big trouble. When I get my hands on a text message chain filled with emojis, I smile. Emojis are wide-open for creative interpretation by lawyers. That’s why I believe you shouldn’t use emojis at work (especially if you’re in HR).

Be humble in a deposition

Here is some humble pie – just because you know human resources doesn’t mean you know how to defend a lawsuit. You don’t know anything about litigation tactics, the rules of evidence, civil procedure, or trial strategy. So stop acting like you’re an employment lawyer.

I’ve had very good HR managers act like this in depositions. A good plaintiff’s lawyer will twist your confidence, manipulate your words, and convince the jury that you were the malicious henchman of the company. We can even make it look like you orchestrated everything!

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The arrogance I’m referring to generally comes out at a deposition. If you approach your deposition with absolute confidence you’re setting your lawyer up for failure. This is especially true when you’re on camera. I videotape all of my depositions. Your non-verbal behavior can completely overshadow your actual testimony. That means a jury might not even hear what you said because your demeanor was so poor.

Therefore, I highly recommend that you approach your depo with serious humility. The Bible says it best, “God opposes the proud, but favors the humble.”

Consult counsel before you terminate

My point with this article is that HR needs to think 10 steps ahead, as opposed to only one step at a time. If you approach HR like chess, instead of checkers, you can help your defense lawyer in a very big way. One of the best ways to do this is to consult with a defense lawyer before you fire problem employees. I know that can be expensive, but the best companies do it.

Another friend of mine, Sean Reis, used to be a defense lawyer. In his 20-year career, he’s defended some difficult employment cases. One time, he and I were up against each other and he was defending a company employee my client was suing. After the case was over and settled, he told me, “You had us, Branigan. If the company had called me before the s#%t had hit the fan, my job would have been a lot easier.” Maybe that’s part of the reason why he quit doing employment defense and became an injury attorney.

So get proactive with legal counsel, instead of reactive. Your company’s bottom line will thank you.

Being a lawyer is hard. We have to contend with case law, opposing lawyers, and difficult judges. If you’re an HR professional, make life a little easier on your defense lawyer, and follow these tips. I guarantee your lawyer and management will thank you.

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