Perhaps more in an employment case than in other types of litigation, the credibility of the plaintiff is the critical factor that will lead to the success or failure of the case. This blog anticipates the three avenues a good lawyer will follow to destroy the plaintiff’s credibility.
1. Prior Public Statements, Including Social Media. A good defense attorney will have reviewed any prior public statements made by the plaintiff, including any agency filings and social media. Counsel will have analyzed all available statements to find words or photos that appear to contradict the plaintiff’s claims in the suit. For example, if the plaintiff claims that the discriminatory treatment or harassment that she endured has ruined her ability to have a normal relationship with a man, but she posts loving pictures and glowing praise for her boyfriend on Facebook, she will have to explain the inconsistency.
2. Prior Inconsistent Statements, Including Texts and E-mail Messages. Not all situations of harassment, discrimination, or retaliation start out badly. Often, a consensual relationship will have developed before something goes wrong. Chances are that the plaintiff will have communicated—especially by e-mail or text message—with the defendant or a co-worker. Counsel should review copies of all communications between them. Again, the plaintiff will have to explain any inconsistencies between her prior communications and the claims in suit.
3. Treatment Records. Employment claims are stressful. The plaintiff may well have received counseling. While the defendant’s alleged wrongful conduct may have pushed her over the edge, she may well have had other stressors in her life. Counsel should scour her counseling records to determine what else, if anything, could be causing her emotional problems. The plaintiff may have to explain the other problems in her life, especially if she spent more counseling time discussing them in her counseling sessions than the claimed wrongful conduct.
Frequently, a defendant will not decide whether to settle an employment case until all party witnesses have given depositions. Preparing carefully for a plaintiff’s deposition is the most important thing a lawyer can do to control the value of an employment case.