Jottings By An Employer's Lawyer

Friday, July 27, 2007

MDV in Montana

I don't often think of Montana as a liberal state, well to be honest I guess I don't think of Montana too often at all, but it is the scene of a recent MDV, for a current employee. This time it is a Billings police officer who alleged that he had been discriminated and retaliated against in violation of his first amendment constitutional rights and also threw in negligent supervision and a claim that there was a violation of the Montana Safety Act which requires an employer to provide a safe place to work.

The Billings Gazette has done an admirable job of covering the story including links to numerous court documents including the complaint, the pretrial order, and depositions of the key players. For those interested in seeing what actually occurs in an employment lawsuit, this is a rare opportunity to see much of the pre-trial testimony and some of the key pleadings, including the jury instructions.

As many employment cases do, the story had a sexy side as it started with the suing officer complaining to his superior that two co-workers had provided narcotics that were used to train drug dogs to a civilian, with whom they were having a sexual relationship. According to him, the supervisor suggested "that they keep it to themselves," which started them down the long path that ended up in the court room.

After their initial story reporting on the verdict, Jury to city: Pay Feuerstein $1.3M, the paper followed up with a story focusing on what made the jurors decide the way they did. Jurors: Officer's case was strong. Although they only had substantive comments from two of the jurors, the things that led them to the award are things that frequently occur in employment law cases:
  • Arrogance --
    [The defense attorney] could only work with what he had, and what he had was a continuous group of smug and arrogant people who, not in their entirety, but for the most part, came off as if they're untouchable. ...
    Testimony by Police Department supervisors "really swung us in the direction we went," one juror said.
  • Witnesses with no axe to grind --
    Some of the most compelling evidence supporting Feuerstein's claims included the testimony from three probation officers who, the male juror said, had no stake in the outcome of the case.
  • Poor record keeping --
    During the trial, a police sergeant acknowledged that records were kept only sporadically when training drugs in the K-9 unit were checked in and out. The male juror described the practice as "sloppy" and "embarrassing."
    Again, how much money ends up in Feurstein's pocket, if any, remains to be seen. But the things that led to this interim stage, which is clearly not a pleasant one for the City and the Police Department, are issues that any employer headed to trial should be thinking about.


Interesting article. I always tell people that the number one factor that juries consider is whether they believe the decision is "fair". But this article points out that juror's perceptions of witnesses is just as important. A well-prepared witness may help a case, just as much as the legal preparation itself.

Daniel A. Schwartz (coming 8.07)
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