Washington Trial Law : Washington State Trial Law & Litigation Lawyer & Attorney : Robert M. Boggs : Seattle, Spokane, Tacoma, Yakima, Vancouver

Years ago when I was a young attorney I would cringe during voir dire if a prospective juror gave a negative opinion of anything that had to do with my case.  I would either quickly move on to another prospective juror or try to convince the first juror that they were wrong.  Those are the wrong things to do. You want that juror to talk and give you all the negative opinions they have without being afraid of those opinions.  The opinions are information. They tell you how that juror thinks and that helps you to possibly challenge the juror for cause or make a wise preemptory challenge.  The prospective jurors you should be afraid of are the ones that are quiet.

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It is common knowledge among plaintiff's employment lawyers the employment discrimination cases filed in federal courts have a short shelf life.  It seems as though there isn't a federal judge who doesn't like a defendant's summary judgment motion.  Most employment discrimination cases depend on inferences from the facts.  That is, rarely do defendants come right out and say they are discriminating agains someone.  Therefore, you have to resort to circumstantial evidence from which a trier of fact could infer that discrimination was taking place.  Federal judges seem loathe to draw any inferences from the facts and therefor usually find that the plaintiff is wanting in her evidence.  I have heard that the judges are "inference challenged."  To see how long it takes to succesfully overcome this bias see the post here.

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The U.S. Supreme Court last month ruled that a man that was fired just weeks after his fiance filed a sex discrimination claim had standing to bring a retaliation claim.  The man and his fiance worked for the same employer. The case is  Thompson v. North American Stainless.  Normally a retaliation claim can only be brought by someone that is engaged in protected activity.  That is those who file a claim, report discriminatioin or somehow assist in the claim.  The man had done none of those things.  His only connection was that he was the fiance to the woman who filed the claim. To prove retaliation it must be an action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."  Firing  the worker's fiance certainly fits that bill but that still only makes it a claim that can be made by the person who engaged in the protected activity.  Justice Scalia comes to the rescue by ruling that the man came within the "zone of interests" protected by Title VII and therefor he had standing to bring the claim. In the language of the statute he was a "person aggreived". On the one hand that seems to be a stretch, but on the other hand he is the one who was fired and to not give him a claim would undermine Title VII.

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