Jury trials and the lawyers and firms who do them are increasingly rare. But it is well worth seeking one out if you have an employment dispute even if you don’t want to go to trial. That is because Jury trial experience informs every decision made in a case and may drive up settlement value leading to better, more informed representation.
A short time ago, at the federal courthouse, I was talking to a named partner from a prominent employment defense firm in Austin, Texas. During a break in his jury trial that I happened to be watching, he told me that the last time he tried a case to a jury was almost four years ago when we were on opposite sides of a state court retaliation claim. At the time of the conversation, I had already done one jury trial that year and would do another in about two months. Moreover, I had done two jury trials the previous year. During the trial we did together almost four years ago, he had remarked to me that although he had represented that particular client for 10 years, this was only the second jury trial he had done for them.
That attorney is far from alone and I could provide several more similar stories about attorneys on both sides of the V . Indeed, according to a 2010 nationwide survey of attorneys who identified themselves as litigators, three out of ten litigators have never tried a case to a jury. See Tracy Walters McCormack and Christopher Bodnar, Honesty is the Best Policy: It’s Time to Disclose Lack of Jury Trial Experience, Voir Dire (Spring 2011). Only 30% of those with five years’ experience had tried a case to a jury. More surprisingly, only 36% of litigators with ten years of experience had tried two or more cases to a jury.
From having done many jury trials, I can tell you that such experience informs every aspect of the cases I work on beginning with the consult. Knowing what facts a jury wants to see, how they want to see them presented, and what might distract them or even what they might ignore, enables me to ask the right questions and provide a candid assessment of the merits of a case. For example, in retaliation cases, juries want to know the timeline of the retaliation. In the two jury trials we won last year, my counsel and I spent much time putting together a clear and concise timeline to show the jury just what happened and when. In both cases, the jury asked to see the timeline during deliberations. Jury trial experience can also reveal things that are counterintuitive. For example, in one sex discrimination and retaliation case, our client had sent an angry, profanity-laced email to her supervisor regarding an event that happened. The defendants hammered the tone of that email as justification for the actions it took against her. But she wasn’t fired because of the admittedly abrasive tone of the email and the jury was not distracted by it. Knowing these things enables me to present my client’s cases in the best possible way. And there is just no substitute for jury trial experience.
Even if you don’t want to go to trial, an attorney with jury trial experience is worth it because it can drive up settlement values. Trials and litigation can be expensive. Having an attorney who is not afraid to go to trial and who has won at trial can make the employer nervous. That is especially true in employment law cases where over three-fourths of lawsuits filed get kicked out by the judge prior to a jury trial. Employers and defense attorneys have more to fear from attorneys who not only have gotten to trial, but have also won major verdicts. When those plaintiff’s attorneys appear in a case, the value of the case goes up because the risk to the employer of losing goes up. In 2016 and 2019, my firm obtained on behalf of our clients, two of the top 100 jury verdicts in the state of Texas according to TopVerdict.com. If you look just at employment law cases on those lists, those verdicts are in the top ten and the top five, respectively. Those accomplishments can help us negotiate better settlements for clients because no employer wants to be dinged with one of the highest verdicts in the state.
If you think you have been discriminated or retaliated against, please contact our office to set up an initial consultation.