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.