Chapter 28 - § 28.6 • TRIAL

• Jurisdiction: Colorado

§ 28.6 • TRIAL

§ 28.6.1—The Theme Of The Case

Plaintiff's Perspective

The most unique aspect of preparing for a trial in an employment case may be the development of a theme. Of course, presenting evidence to support each element of a claim goes without saying. In every trial, counsel should have the exhibits organized and available for electronic presentation, for passing to the jury as the court may allow, or for the jurors to view on a monitor or screen. This creates maximum impact. Also, witnesses should be arranged in a logical order to tell the story. Federal courts in Colorado require attorneys to list their witnesses in order and exchange this list with opposing counsel prior to trial. Some judges also require disclosure of the amount of time the attorney believes each witness will take, including cross-examination. Lawyers should expect to be held to these times. Their theme should unfold at trial by the presentation and order of exhibits and witnesses.

Choosing and using a theme is important because it helps the jury focus on your issues. Themes internalize stories. Counsel should switch from the law to the human dimension by laying out the facts so they best portray what happened and the jury will remember the story being told.

From the plaintiff's point of view, counsel should remember that they cannot win on cold, hard facts but must warm up the principle at stake. For the plaintiff, it is important that the theme give some hope that a situation can be rectified and justice be obtained. The theme may focus on certain facts in a case such as the performance record, qualifications, comparisons, co-employees' statements about treatment, or reasonableness. However, a theme that goes beyond the facts, including any of the following, can greatly assist adding power to the case: human dignity, the human spirit, equal employment, reasonable treatment, a little human kindness, accommodation, human rights, the right to earn a living, the right to provide for one's family, respect in having one's side of the story heard, fair play, sensitivity, tolerance, and investing in the employee.

Sometimes the plaintiff can capitalize on the theme chosen by the defense if the plaintiff's theme is more powerful. The following themes by defendants, for example, are vulnerable: enough is enough, we're sorry but we just can't, we simply can't afford it, sales are down, there just was no place for the employee (especially for long-term employees).

Defendant's Perspective

During the investigation of the case, discovery, and legal research, the employer's attorney also must develop a theme for the case. The theme is the story of the case from the employer's perspective that explains and accommodates all the facts, good and bad, and that is interesting, logical, easy to follow and, ultimately, persuasive. This story will become the employer's attorney's opening statement.

In developing this theme, counsel should keep in mind some important principles. First, virtually everyone on the jury is or has been an employee and will take the plaintiff's loss of employment (or other adverse employment action) seriously. To justify the plaintiff's loss of employment, counsel should make the following points (if true): the plaintiff's performance or conduct had a serious impact on the employer's business in some way; the plaintiff was informed of the problems with his or her performance or conduct; and the plaintiff was warned that unless he or she improved or ceased the conduct, he or she would be terminated. The exception, of course, will be cases where the plaintiff's misconduct is so clearly inappropriate or so serious that no warning was necessary or appropriate, such as theft or violence in the workplace. These points are vital even if there is a good argument that the employee was an employee at will. The jury will want to know that the plaintiff was treated fairly and could have avoided the consequences of poor performance or misconduct.

Motions In Limine

Just as the parties have a plan for evidence to be introduced to present their sides of the case story, it is important to plan to argue to exclude potentially prejudicial evidence the other party may intend to use. One procedure to accomplish this is a motion for a protective order, which prohibits the discovery of certain facts. See § 29.4.4, "Motions For Protective Order" in Chapter 29 of this Guide. Another method involves filing a motion in limine. A motion in limine is one that is filed or argued orally prior to an opponent offering what is deemed to be prejudicial evidence. It is a motion made to limit or to exclude evidence that has been discovered and/or disclosed. The timing of the motion in limine may be critical.

C.R.C.P. 16(c) provides, "Unless otherwise ordered by the court, pretrial motions, including motions in limine, shall be filed no later than 35 days before the trial date. . . ." The federal Rules do not contain a specific deadline for the filing of motions in limine; however, the U.S. District Court Judges for the District of Colorado all mention the timing for filing motion in limine in their published Practice Standards on the court's website. The comments range from the discouraging filing such motions to pre-trial deadlines for filing them.

Practice Pointer
It is imperative that a motion in limine be made before evidence you want excluded is offered. The court needs time to consider the arguments in order to make what may be a critical evidentiary ruling. Also, making a motion that precedes any presentation of the evidence is the best method to preserve the issue on appeal. Finally, even though some judges take the position that such motions cannot be considered until the court hears how evidence in the case unfolds at trial, don't let that deter you. File your motion in limine — after a proper conferral — as soon as you can present your argument in a context such that a court can reasonably understand the need for an order on the issue.

§ 28.6.2—Litigation Technology

Advanced technology is the norm. This technology enables attorneys to present evidence in ways that are appealing and easy to understand. Nonetheless, there continues to be a disparity among the various courtrooms in terms of the room's technological capabilities and in what the judge prefers or encourages. It is absolutely essential for counsel to research trial procedures and become familiar with the technology requirements of their particular trial court. The U.S. District Court for the District of Colorado has a helpful courtroom technology manual that is provided at the end of this chapter as Exhibit 28I.

The technology available in most courtrooms includes DVD players, televisions, digital projectors, presentation software, analog audiotape players, and overhead projectors. Growing in availability are CRT monitors, digital audio recording devices, light pens or electronic telestrators, electronic whiteboards, touch screens, and evidence cameras (the successor to overhead projectors). The heart of any electronic courtroom is the evidence presentation system that serves as a control center for all video, audio, and digital information.

Most courtrooms in Colorado's federal district court have consoles equipped with annotation equipment that allows lawyers (or witnesses) to mark up images being displayed on monitors or projection screens. This equipment involves a monitor that responds to touch by a finger or stylus. The drawing or annotations on the monitor can then be projected to all the other monitors in the courtroom. In many ways, this technology mirrors the type used by sports commentators to mark-up plays so viewers can follow quick movements during a sports game telecast.

Attorneys should be familiar with all the technology that will be available for a particular trial. This may include...