Employment Litigation: War Story
By Daniel Watkins
My first employment defense case was back in 1991. I defended a large material supplier and their manager in a sexual harassment/assault case in Los Angeles. The Defendant manager was accused of sexually harassing, assaulting and stalking the plaintiff. He was a married man with three children. He wrote her love letters (she never wrote back), called her collect from family vacations at 1:00 am, and was seen by many trying to force himself on her. He was seen at her apartment sexually assaulting her. He ripped open her jump suit exposing her breasts, right in front of her neighbor and daughter. There were numerous witnesses to his advances and they all testified at trial. This went on for quite some time. He finally terminated her in a fit of anger after she claimed he found out she got a boyfriend. He erroneously accused her of making a mistake at work and when she protested, he told her to “get the f%&^ out!” and then had the office cut her a check and fired her. All of this was confirmed by witness testimony and admitted by the manager. We tried to settle, but the plaintiff’s council realized they had a very good case and insisted on millions of dollars to settle. We had no choice but to take this matter to trial.
When I won the case I realized I had a knack for trying these cases. So did my partners. We were all amazed at how easy it was to take the case away from the plaintiff and completely change the focus of the trial. All of the facts above were proven true at trial and yet we were able to get the jury to return a quick verdict in our favor. The plaintiffs never saw it coming and probably still don’t understand to this day why they lost. It wasn’t long before I was defending several employment cases. I started defending hotels, restaurants and large corporations, all rendering the same result. The facts of the case did not matter. We could not lose and we didn’t! We were also getting plaintiff’s counsel to walk away from good cases because of mistakes in discovery.
Then, a few years later came the TGI Friday’s case. The plaintiffs held a press conference and demanded 60 million dollars. I represented the manager of TGI Friday’s, the main defendant. There were six women suing together. All with self validating claims of graphic and provable sexual harassment. I was able to get the company’s workers compensation carrier to pick up the defense. (Note: this option is no longer available today). My client was accused of and admitted to repeatedly sticking his tongue in his young female waitresses’ ears. All of them! There were over 50 waitresses working at this restaurant. He traded hotel rooms for food with the hotel next door, he gave preference to those who flirted and drank with him. He had sex with the waitresses. He made them all tell at least one dirty joke before each and every shift. The trial lasted 11 weeks and it was televised every day. Again there was no way to settle as the demands were in the 10’s of millions of dollars. One witnessed testified that he rubbed his erection against her from behind and stuck his tongue in her ear. (A witness, not a plaintiff.) There was a ton of other evidence, all bad. All evidence was irrefutable. We could not deny it as there were dozens and dozens of witnesses, and on top of it all my client admitted it was true.
And we still won. Still the plaintiffs’ attorneys failed to see what was so plain to me from the first day I tried one of these cases back in 1991. They were making mistakes early on in the litigation and didn’t realize it until they got to court. All the great facts were not going to help them. They were also making mistakes in trial. They made the wrong assumptions in jury selection as well as case presentation. I knew we were going to win and they were still demanding millions right up until the jury came back with its’ verdict.
By the late nineties I had been trying and litigating these cases for awhile. Pacific Bell hired me on a case to assist in-house counsel in Orange County. That was a fun case to try. Counsel for Pacific Bell had come to court and watched what we had done in the TGI Friday’s case and was on board. We tried our case and the plaintiff’s attorney tried his. The plaintiff’s attorney really didn’t know what hit him.
There is nothing sneaky or tricky about defending these cases. No litigation tricks, no special maneuvering. We simply look at them differently than other firms. We look at what the plaintiffs are really saying, and how they are saying it. The facts are there in every case. Recognizing them is the trick. Most firms will see a set of facts and not even notice the inconsistencies. After they are pointed out, they become glaring, but until then, common stereotypes and notions of how real sexual harassment and discrimination might look in the workplace prevail and companies will continue to pay when maybe they shouldn’t. The lawyers never really ask the right questions.
After 19 years of successfully defending employment cases we have developed ways in which we can cut the cost of defending these kinds of cases dramatically. Recently we tried and won a sexual harassment and assault case for one of our business clients. My clients were actually recorded this time. Yes they had us on tape. It still it didn’t matter. We won. More importantly, it costs the same amount of money to defend that action in the year 2009 as it did 19 years ago. Today we know exactly what we are looking for and how to get it at a fraction of the cost.
Employment cases are up 1000 percent. We have a program at our firm for defending these types of cases and we have not lost an employment case since we started in 1991. Not all of our cases go to trial. In fact most do not. If you have an impossible employment defense case and you would like some advice or a second opinion, please call. We would be happy to assist you.