Jottings By An Employer's Lawyer

Thursday, March 29, 2007

Some Helpful Evidentiary Rulings For Your Next Trial


Because appeals so rarely turn on evidentiary points, it is not infrequent to have a situation where the answer is obvious, but it's hard to find a case where a court actually said it. One that comes up frequently in employment cases is testimony by a decision maker about what he or she has been told by others. The inevitable objection is hearsay.

Going back to Evidence 101, hearsay is "an out of court statement offered for the truth of the matter asserted." It's frequently the second point that is the key to admissibility, and was in Maday v. Public Libraries of Saginaw (6th Cir. 3/28/07). But it's a point some judges seem to forget in the heat of the battle.

You got a hint of where the opinion was going from the Court's topic heading — Admission of Alleged Hearsay Evidence:

In particular, Maday points to parts of Marcy Warner’s testimony on cross-examination, when she was asked by defense counsel why she had taken disciplinary action against Maday. At one point during her testimony, Warner recounted comments she had heard from several third parties about Maday, involving both Maday’s poor interactions with Library patrons and coworkers as well as Maday’s volatile reactions to some of the discipline she received. Warner also testified that she heard from people present when Curtis had suspended Maday in February 2003, that Maday had stormed out of the office and threatened to jump off a bridge. Maday’s counsel objected to this line of questioning on hearsay grounds, but these objections were overruled by the district judge, who noted that the statements were not being offered for their truth.

The district judge also had dealt with plaintiff's counsel's objections under Rule 404 and 404(b):

I don’t believe that [is] a sensible objection. Rule 404 prevents character evidence to prove conduct under limited circumstances, Rule 404(b) allows other acts to show things other than character. This evidence is offered for neither of those purposes, it’s to show the reason why the employer took the action it did in accordance with its progressive discipline policy which means something had to happen earlier.

One other area where you can never have too much authority is the relevance of evidence to counter plaintiff's mental anguish damage. After offering a portion of a social worker's record to show mental anguish, plaintiff objected when the employer offered other parts of the records:
The admitted record to which Maday particularly objects included the following notation by the social worker:

Claimant is unhappy with her attorney who told her he didn’t want to be used as a tool for her revenge. He wanted claimant to settle out of court, but claimant said they had not discussed it before.

When asked by the district court why she wanted this record admitted, [the] defense attorney stated:

[I]t’s been our contention all along . . . there are things going on in [Maday’s] life that are causing her depression other than what happened at work. One of the things is the fact that her attorney is telling her he’s not going to be used as a tool for her.

She’s depressed, it makes reference to her mood, and we’re entitled to explore and argue anything that would have impact on her mood.

The district court agreed, noting:

I believe the comment relating to the attorney is probative. There may be some damaging inferences that could be drawn, but I don’t find that the unfair prejudice is substantially outweighed by the probative value, especially given the fact that reaction to her attorney and her effort to pursue a claim against the library may be an alternate cause of her emotional state as opposed to the events that occurred when she was employed there, or arising out of her termination. The claim is that the plaintiff was terminated on account of her age and that termination gave rise to a state of—an emotional state that is compensable. This document suggests there might be some alternate source of her distress and, consequently, its relevance is manifest, and . . . not unfairly prejudicial.

You can tell from the opinion that this was not a case where things went well for plaintiff's counsel. In addition to losing on those two points, the other appellate point was a complaint about the conduct of the employer's lawyer, primarily comments (and facial expressions) directed to and about him.

That didn't work either, the Court somewhat adding insult to injury by saying that while defense counsel's "actions may have flirted with impropriety, but [probably] her demeanor and tactics negatively influenced her own client’s case as much as they might have Maday’s.”

In effect — if what you describe happened, it should have helped your case not hurt it, but you still lost. The bottom line: "[Plaintiff] received a fair trial before a jury and lost. Accordingly, we affirm."

And the final grain of salt in plaintiff's counsel's wound is simply reflected here:

Argued: March 13, 2007
Decided and Filed: March 28, 2007

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