Trial of sexual harassment case

• Author: Aaron B. Maduff
• Pages: 481-512

TRIAL AND POST-TRIAL

PROCEEDINGS

TRIAL AND POST-TRIAL PROCEEDINGS

TRIAL AND POST-TRIAL

PROCEEDINGS

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TRIAL OF SEXUAL

HARASSMENT CASE

22-3 TRIAL OF SEXUAL HARASSMENT CASE §22.2

CHAPTER 22: TRIAL OF SEXUAL HARASSMENT CASE

§22.1 TASK: UNDERSTAND WHAT YOUR TRIAL IS

§22.1.1 WHAT AND WHY

Throughout this book we have discussed various elements of the law. In Chapters 9 and 17 we discussed

summary judgment. Summary judgment is granted only when there is no dispute about the relevant facts. Since

judges are responsible for interpreting the law, where there is no dispute about the relevant facts, there is no need

for a jury. Where there is a dispute, a jury is responsible for deciding the facts of the case. The jury then applies

the law to the facts as the judge explains it.

The trial is the method by which the jury is presented the facts. (If the parties have elected to have a bench

trial, the judge will be responsible for deciding the facts, but the judge must still make credibility determinations

about the evidence to determine what the facts are. Although there are other methods, the trial is still the most

common method for doing this.) This chapter assumes that you are presenting a jury trial.

§22.1.1.1 The Pieces of a Puzzle

The process of a trial is much like a jigsaw puzzle. The pieces to the puzzle are the evidence presented to the

jury. The jury will eventually put these pieces together to create a whole. For many reasons, though, the evidence

is presented in a disjointed fashion: information is not presented in chronological order or some other fashion that

may make the case easily understandable. To the contrary, all evidence that you need to present from a particu-

    

employment; step down from the witness stand so that a third party witness can describe how the harasser was

hired and harassed someone else; return to the stand to testify about how she was harassed; step down so that the

company EEO investigator can testify about the investigation into the harassment; and then return to the stand

again to testify about her damages. There is much more to a jigsaw puzzle than the pieces. There is a box in which

the pieces are kept.



looks exactly like the picture on the box—it is much bigger, the details are more clear, and there are grooves where



is in the eye of the beholder. All of these elements can be found in the trial. Throughout this chapter, we will refer

to the analogy of a puzzle to understand the parts of it.

Practice Note: Knowing what part of the puzzle you are using is critical to good trial work

The jigsaw puzzle analogy is useful to categorize the material you are using in a trial. Do not confuse

evidence (the pieces) with arguments. This can get you into trouble. (Watch for these kinds of practice

notes, building on the puzzle analogy, throughout this chapter.)

§22.2 TASK: VOIR DIRE AND JURY SELECTION

§22.2.1 WHAT AND WHY



jurors are required to speak the truth about themselves. Your primary task in voir dire is to gather information about

potential jurors to help you strike as many bad jurors as you can for cause and to give you enough information to

decide on whom you need to expend your peremptory challenges. However, you must also recognize that this is



The reality is that in spite of every question you ask, in spite of all manner of theoretical psychology, in spite

of expensive jury consultants, juries are a wild card. You simply never know what you are going to get and you

rarely know what you have gotten even after the jury has been seated. Asking someone what magazines they read

or clubs they belong to rarely gives you any truly valuable information. A card carrying member of the ACLU

can still be skeptical of a discrimination claim just as a business owner can hold an employer to higher standards.

If you want certainty, settle your case. The old adage that you must prepare and prepare and prepare for trial and

still expect that everything will go haywire is true. So it goes with voir dire; all you can do is the best you can do.