Letter to the Editor

Re: Why Some Lawyers Spend So Much Time and Money on Discovery

Add another reason to Brad Brian's list about why so much time is spent on discovery (Your ABA August 2006: "Have a plan in litigation—it works and it's cheaper").  In employment cases, it has become essential to ferret out every single bit of evidentiary detail due to the ever-growing trend of federal judges to grant motions for summary judgment, combined with the ever-growing trend of the Courts of Appeals to affirm those decisions.  While a plaintiff does not have to prove discrimination was the "sole cause" of her termination, several circuits require the plaintiff to disprove each and every criticism the employer offers to explain its conduct before she is entitled to a jury trial.  See, e.g., Jaramillo v. Colorado Judicial Dep't, 427 F.3d 1303 (10 th Cir. 2005).  Judges, rather than juries, are deciding who they believe and they are making these determinations based on briefs (and affidavits) drafted by the company's lawyers.  And the statistics starkly demonstrate that employers are widely favored in this process – by margins so large they cannot be explained away as mere happenstance or even by the number of pro se cases filed.  See "Lessons in Losing:  Race Discrimination in Employment," 81 Notre Dame L. Rev. 889 (2006); "How Employment-Discrimination Plaintiffs Fare in the Federal Courts of Appeals," 7 Employee Rts. & Employment Pol'y J. 547, 561 (2003).  Hence, careful plaintiff's employment lawyers know they cannot afford to leave a single stone unturned – else their client's case will not be submitted to ordinary men and women of the community who, working together on a jury, bring their collective common sense (as well as their ability to smell a skunk) to bear on the evidence, and the excuses. 

Margaret A. Harris
Butler & Harris
1007 Heights Blvd.
Houston, Texas 77002

Back to top