Now that the Supreme Court has declined to accept the NFL\u2019s last-ditch effort to force all or part of the Brian Flores case into arbitration, the litigation will finally get going.<\/p>\n
And the going could get nasty.<\/p>\n
By way of background, I have handled many employment cases. From both sides. After working for years at a firm that focused on representing corporate clients that had been sued (no matter how strong or weak a given case may have been), I decided that I was more interested in representing individuals who had cases I believed to be strong.<\/p>\n
So I\u2019ve been there, done that. Many times.<\/p>\n
Here\u2019s the reality. No company that has been sued for wrongful termination will admit it. The witnesses will have locked into their stories months before it\u2019s time to take the oath to tell the truth, the whole truth, and nothing but the truth. Proving that the party line is essentially a lie requires a relentless pursuit of circumstantial evidence to contradict the predictable denial of discrimination, retaliation, etc. (For example, if the plaintiff was fired for violating a specific workplace rule, it\u2019s useful to show that others violated the same rule, without being fired or even disciplined.)<\/p>\n
This means that, in the Flores case, his lawyers will aggressively pursue deposition testimony from a wide range of witnesses from the league office and the various teams that have been sued (so far, the Dolphins, Broncos, Giants, Texans, Cardinals, and Titans). Plenty of the witnesses (starting with the Commissioner and any owners) will not react well to being verbally poked, prodded, and pressed for anything beyond the predictable default position: \u201cwe didn\u2019t do anything wrong.\u201d These witnesses will emerge from the deposition process feeling anywhere from frustrated to flat-out pissed off.<\/p>\n
Flores (along with the other plaintiffs, Steve Wilks and Ray Horton) will deal with the same kind of thing. The lawyers representing the NFL and its teams will look for anything they can find to make them look bad. They\u2019ll dig and dig and dig some more to make the process as uncomfortable as it can be. They\u2019ll throw mud at the wall. They\u2019ll throw mud directly at the plaintiffs. They\u2019ll try to catch them in any potential misstatement, big or small, that could then be characterized at trial as a lie.<\/p>\n
In the deposition process, there\u2019s a wide range of latitude when questioning a witness. With no jury present, the lawyers don\u2019t have to worry about being so aggressive (to the point of being openly hostile) that it may alienate the people who will decide the case.<\/p>\n
This is what I\u2019d typically say to anyone who was interested in suing a current or former employer: \u201cThink of the worst thing about yourself that you wouldn\u2019t want other people to know. You don\u2019t have to tell me what it is. Just think of what it is. Then, think of what would happen if that thing became public. And then assume that, at some point during this litigation, it will.\u201d<\/p>\n
The unofficial playbook for lawyers defending corporate clients against claims of illegal employment practices includes turning the tables on the plaintiff in the hopes of making the plaintiff look as bad as possible when it\u2019s time to present the case to a jury. It gets messy. It gets ugly. And, like the Commissioner and owners who are questioned by Flores\u2019s lawyers, Flores will emerge from his deposition feeling anywhere from frustrated to flat-out pissed off.<\/p>\n
That\u2019s how it goes. The discovery process becomes the legal equivalent of a street fight. Which could be bad for the league, the teams, and\/or Flores, Wilks, and Horton.<\/p>\n
As the snippets of deposition testimony come to light, it will be very good for my current business.<\/p>\n","protected":false},"excerpt":{"rendered":"Now that the Supreme Court has declined to accept the NFL\u2019s last-ditch effort to force all or part…\n","protected":false},"author":2,"featured_media":677715,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[63],"tags":[349,99],"class_list":["post-677714","post","type-post","status-publish","format-standard","has-post-thumbnail","category-nfl","tag-nfl","tag-sports"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/677714","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/comments?post=677714"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/677714\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media\/677715"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media?parent=677714"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/categories?post=677714"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/tags?post=677714"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}