I spent yesterday afternoon watching part of a trial at the federal courthouse in Greenville, South Carolina. A friend (and fellow employee-side plaintiff’s lawyer) was trying an employment case against BMW, a company that operates a plant in Spartanburg and has a huge presence in the Upstate. I took the afternoon away from my practice to come watch, partly to support another employee advocate and partly to witness a vanishingly infrequent event in our legal world: a single plaintiff discrimination trial.
Something like 95% of employment cases either settle or are dismissed by the court without a trial. Generally our biggest battle on the employee side is getting the case to a jury, as the companies fight tooth and nail to avoid having members of our community hear what the companies have done to their employees. Getting a judge to dismiss the case before trial (through what’s called a “summary judgment motion”) is the primary legal tactic. Judges, in my view, are far too willing to toss an employee’s case instead of letting a jury decide the outcome. Then again, they don’t tend to ask my opinion about the matter.
Because the jury trial happens so rarely, I wanted to watch at least part of it. I’ve found that it’s easy to lose sight of the importance of a trial in all the hubbub and distraction of discovery and depositions and motions practice—all the events of litigation that consume most of my cases for months and years before a trial even becomes a possibility.
The new federal courthouse in Greenville is quite beautiful, by the way. Elaborate tile mosaics sprawl across the lobby walls, a lobby guarded by a duo of federal marshals. A federal courthouse always seems so quiet compared the regular hustle and bustle that pervades the county courthouse across the street. This trial was the only thing going on.
I will say, too, that for a case against one of the largest employees in the upstate, the courtroom was curiously empty. In the viewing gallery with me were only a handful of people. The rest were all the parties’ lawyers at their tables, overflowing with papers and laptops and anxiety; the jury members to my right in the jury box; courthouse staff; and the judge presiding over it all.
No media was present, which is normal. Even though many, many potential clients tell me that their employment case would be loved so dearly by the local news, the reality is that the news rarely expresses any interest in employment cases unless it’s a juicy set of factual allegations against a government official or entity, or perhaps against the CEO of a big company. Maybe. But for the most part, these types of case rise and fall without notice by anyone save the parties involved.
By virtue of my own practice in South Carolina, I know almost everyone involved in the case, even the lawyers for BMW, against whom I’ve had more than a few claims. The plaintiff’s employment bar in South Carolina is small enough that we all pretty much know each other fairly well. The good guys must stick together as we fight the good fight against the well-financed corporations of the world.
As for the trial itself, I caught the tail end of the plaintiff’s testimony, as BMW’s lawyers finished cross examining her. She was the only witness for her own case, as after she finished, the plaintiff “rested her case,” as we say. Then the judge sent the jury members out of the courtroom so the lawyers could talk logistics with the judge for how the afternoon would proceed, whether with the judge hearing some motions that the parties’ had raised or jumping into BMW’s case-in-chief.
The judge let the jury and the lawyers leave for lunch. When everyone got back, the judge heard a motion raised by the plaintiff’s lawyer regarding a comment made by BMW’s lawyers during opening statements from Tuesday and whether the judge should issue a “curative instruction” to the jury that would explain that the jury should disregard the comment. The judge heard arguments and then denied the motion. With that, BMW called its first witness.
I’ve followed this case over the last few years, including reading many of the written arguments and orders issued in the case, so I was familiar with the facts. The basic allegation of the plaintiff’s case is that BMW made a personnel decision that resulted in a demotion of the plaintiff to a lesser position so that BMW could fill her old role with a German national. BMW apparently has a policy that requires German nationality to be used in setting up lines of succession. For example, if you have an American head of HR, then the second in command of HR MUST be a German.
Well, Title VII of the Civil Rights Act prohibits personnel decisions based on nationality. [Read more: Employment Discrimination: An Overview] And demoting an employee to a lesser role that prohibits or limits upper movement later would constitute an “adverse employment action” under Title VII, thereby creating the legal claim the jury was there to decide.
BMW, obvs, claims that nationality had nothing to do with the decision to move the employee, and that the demotion wasn’t a demotion; rather, it was just a lateral move.
First up that afternoon for BMW was the president and CEO of BMW Manufacturing Co., which is the Spartanburg Plant. BMW’s lawyers had a chance to direct his testimony, meaning they could rehearse and practice with their witness in advance to present a more polished narrative. He testified for just under two hours. Then the plaintiff’s lawyer got a chance to cross examine the witness.
Cross examination is the biggest test of a witness’s credibility to a jury. Now, though, the questions are pointed and decidedly not rehearsed. The witness has to parry and dodge on the fly, while under oath, and while trying not to look defensive or dishonest to the jury. Key points that the defense didn’t bring up—well, now they get brought up.
I was only able to watch about an hour of cross before I had to leave the federal courthouse to go pick up my kids and take them to baseball practice, but cross is always the most entertaining to watch (especially if it’s not YOUR client being cross examined). I look forward to hearing reports on how the remainder of the case comes out, including what the jury ultimately determines.
I slipped out of the courtroom around 4:30pm and headed out into the empty echoing halls. I’ve got an employment case coming in state court for trial in September, and even just a few hours of watching these lawyers battle each other on this unseasonably warm week in February is enough to get the trial juices flowing.
I’m biased, of course, as I represent only employees in my employment law practice throughout South Carolina (you know, the GOOD guys), but regardless of what side you are on, whether employee or employer, it’s hard to underestimate the importance of the jury trial. Even though most cases never reach that point, having the opportunity for a jury made of regular folks in your community to hear your story, to hear the company’s defenses, and to make up its own mind on what a just and righteous outcome will be—well, that’s a privilege that we should not lightly wield.
A jury may not always come to the right decision, as I view the “right” decision, but I suspect it’s better than the alternative: men with clubs beating up the alleged wrongdoer.
So yeah, a bunch of lawyers in suits talked a whole lot yesterday, as did the witnesses; a bunch of citizens heard it all; and soon that bunch of citizens gets to say who is right.
That’s pretty amazing. And in a world where we can so easily get overwhelmed by so much that is decidedly not amazing, let’s take the wins where we can.
‘Til next time.
