Even if you’ve never seen the TV show or read any of the books about Perry Mason, criminal defense attorney extraordinaire, you know the moment I’m talking about.  It happens at the end each episode or book.  Perry Mason is representing an innocent man or woman, but things are not looking good.  The District Attorney, Hamilton Burger is on the attack, presenting one damning piece of evidence after another.  But then Perry calls one more witness or recalls a witness from earlier in the trial and everything changes.  Under withering cross-examination, Perry breaks down the witness by pointing out inconsistencies, falsehoods, and ulterior motives.  By the end, the witness is a reduced to a quivering mass of raw nerves.  And then the witness confesses!  Or points to the real guilty party sitting in the back row of the courtroom.  The charges against Perry’s client are quickly dropped and Perry Mason once again emerges victorious.

Dramatic stuff.  But does it really happen?  I am sad to say that it doesn’t generally happen.  As a lawyer, they teach you never to say never.  So, it is impossible for me to say it doesn’t ever happen, but as Hamilton Burger says to Perry Mason in the new gritty HBO reboot, “Nobody confesses on the stand!”  However, the myth that a courtroom confession is just a few well-worded questions away in every case is both persistent and dangerous.

I know it is persistent because I hear it from clients, jurors, the public, and in popular culture.  

It’s dangerous because if someone, like a client or a juror is waiting for the bad actor to confess, then that person is not going to gather other evidence or pay attention to it when it is presented.  Defense attorneys in employment law cases play into this myth all of the time.  There is a not a single deposition, trial or evidentiary hearing that has occurred in any of my cases where the following exchange does not take place between the defense attorney and the bad actor:

Defense Attorney: Did you fire Ms. Smith because of her age, sex, religion, disability, race, national, origin, or color?

Person who fired Ms. Smith: No.

Of course, this person is going to say no.  People do not admit to violating the law, especially under oath in front of lawyers, judges, and juries.  So why is the question asked in every proceeding? It is because it plays into the idea of the Perry Mason moment and could make everyone’s job easier.  After all, if you believe that the guilty will confess, then the fact that no one confessed means they are not guilty.

 So what is the point I’m trying to make with all of this?  The point is this: employment law cases are hard to prove and to win.  There are rarely smoking guns and never any witness stand confessions.  To show that you were wrongfully terminated or demoted or not promoted requires careful gathering of circumstantial evidence that enables a jury or judge to reasonably infer from the smoke that there is fire.  Expecting a simple and conclusive “I did it” from the bad actor only allows employers to get away with what they did.  

Finally, even if a lawyer gets close to a Perry Mason moment, the trial goes on.  The closest I’ve come to a Perry Mason moment was in a failure to accommodate a disability case where one of the issues was whether or not our client was fired because she had asked for an accommodation. I had the ultimate decision maker on the stand the very first day of trial and asked, “If [our client] had not requested an accommodation, would she have been fired?”  The decisionmaker responded, “No.”  After that, the trial went on for two more days and took a full day of jury deliberations before the jury found in favor in our client.  So even getting close to a Perry Mason moment does not guarantee a win.  

The key is to present evidence methodically and persuasively that shows what was done was unlawful.

If you think you have been discriminated against, please contact a lawyer to discuss your options for moving forward. 

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Colin W. Walsh Colin W. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh carries.

1. What do you like most about being an employment lawyer?

I enjoy getting tangible results for my clients and being involved in an area of law that affects everybody every day.

2. What is the most important issue to you of being an advocate?

One of the most important issues to me as an advocate is to not only zealously represent my clients, but also the law.

3. What kind of clients do you like best?

I like the clients that I am able to help who were not able to find help elsewhere.  On a couple of occasions now, a client has told me that my firm is the first one that has listened to his or her issue and offered any kind of assistance.

4. What do you think is the most important part of a good case?

The client.  If the client is not invested, then the other side won’t take it seriously and neither will the jury.

5. What labor and employment issues do you think are currently trending?

The biggest employment discrimination issues I see right now are related to age, disability, and pregnancy discrimination.  For some reason, these types of discrimination seem to be acceptable to employers.  The other issues right now are minimum wage and overtime pay.

6. Who is your favorite Supreme Court Justice?

Justice William Brennan.

7. What would you say to HR of a company about how to treat employees?

It would be to listen to your employees.  Most employees are not looking to sue when he or she goes to Human Resources.  These employees are sincerely looking for help.  Nothing makes an employee seek legal counsel like when he or she complains about something and HR starts investigating the employee instead of the complaint.

8. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

The most interesting job I’ve had is working as an extra in film and television.  I should have known that I was destined to be a lawyer at that point because two of my biggest gigs were the TV show “Boston Legal” and the film Charlie Wilson’s War.

9. What is your favorite food?

Meat pies.  I first discovered them when I studied abroad in undergrad.  I can’t believe these have not caught on in the U.S. because they are brilliant.

10. What’s the best part of living in Austin?

All of the outdoor festivals.  And the Longhorns.

Colin W. Walsh is a Trial Attorney in the Austin office of Wiley Walsh, P.C.  He graduated from The University of Texas at Austin with a bachelor’s degree in theatre in 2006.  Mr. Walsh then graduated from The University of Texas School of Law with honors in 2011.