Masters of the CourtroomSM

Opening Statements, Closing Statements,

Rebuttal, Demonstrative Exhibits

The Hon. Jane Triche Milazzo, USDC – EDLA

M. Nan Alessandra, Phelps Dunbar LLP Jason R. Williams, Jason Williams & Associates

Course Number: 0200141211 1 Hour of CLE

December 11, 2014 12:30 – 1:30 p.m.

Jane Triche Milazzo was sworn in as a United States District Court Judge for the EasternDistrict of Louisiana on October 12, 2011. Judge Milazzo was nominated by President Obama onMarch 13, 2011 and was unanimously confirmed by the United States Senate on October 11, 2011.

Judge Milazzo graduated from Nicholls State University in 1977, and taught elementaryschool for several years. In 1986, she went to work for her father as his legal assistant andeventually found her way to law school. She graduated from LSU Law school in 1992. Aftergraduation, she immediately went into practice with her family, Law Offices of Risley Triche, LLC,where she engaged in a general practice. In 2008, Judge Milazzo was elected to the 23rd JudicialDistrict Court without opposition. She was the first female elected to that position.

During her years in private practice, Judge Milazzo was active in several legal organizationsand served as president of both the Assumption Parish Bar Association and the Twenty-ThirdJudicial Bar Association. She was also a member of the Louisiana State Bar Association House ofDelegates where she served as a member of the Legislative Committee and as chair in 2007. As astate district judge she served on the executive committee of the District Judges Association. Shecurrently serves on the Board of Directors for the New Orleans Federal Bar Association.

Judge Milazzo is married to John Milazzo, Jr. and has four children, Richard Perque, AnnePerque Schmidt, Jerome Perque and K. Joseph Perque, Jr. and two step-children, Jack Milazzo andJennifer Milazzo Bailey; they have three grandchildren. She is the daughter of the late Risley“Pappy” and Clara Triche of Napoleonville,.

M. Nan AlessandraPartner

Practice

Nan Alessandra practices in the areas ofemployment litigation, arbitration andemployment counseling, alternate disputeresolution, civil rights, business litigation,and constitutional law litigation.  Heremployment litigation and arbitration practiceincludes representing employers in thedefense of discrimination claims for age,gender, disability, race, retaliation, ethnicity,religion, and workplace harassment, andhandling EEOC charges and otheradministrative complaints through theadministrative, arbitration, and judicialprocess, including both trials and appellateproceedings. She also advises clients on avariety of human resource issues, assists indeveloping employee policies andprocedures and provides training tocompany management and personnel on avariety of employment and labor relatedtopics on corporate and legal complianceissues. She serves as the practicecoordinator of the employment law group inthe firm's New Orleans office.

Ms. Alessandra has been awarded the “AV”rating by the Martindale-Hubbell LawDirectory, which is the highest possiblerating for legal ability and ethical standards.She is also among a select group of lawyerslisted in a nationwide client survey publishedin Chambers USA: America’s LeadingLawyers for Business as well as The BestLawyers in America and Super Lawyers .

Ms. Alessandra is on the panel of neutralswith the American Arbitration Association

ContactCanal Place365 Canal Street, Suite 2000New Orleans, Louisiana70130-6534T: 504-584-9297F: 504-568-9130nan.alessandra@phelps.com

Service AreasCommercial LitigationLabor and Employment

Education

Loyola University NewOrleans College of Law,J.D., cum laude , 1985;Member, Loyola LawReviewUniversity of NewOrleans, B.A., 1982

Admissions

LouisianaTexas

for both arbitration and mediation. She alsowrites and speaks often on behalf ofmanagement interests on employment-relatedtopics and is the managing editor and acontributing editor of the firm’s employmentand labor law updates. In 2003, sheco-authored a law review article with a cliententitled “Drafting Non-CompetitionAgreements in Louisiana: A Drafter’sDilemma,” 49 Loyola Law Review 809 (2003).Prior to joining the firm, she was JudicialClerk to the Honorable A.J. McNamara andJudicial Extern to the Honorable Martin L.C.Feldman, both of the United States DistrictCourt for the Eastern District of Louisiana.

Membership / Affiliations

Louisiana State Bar AssociationState Bar of TexasBar Association of the Fifth FederalCircuitFederal Bar Association, New OrleansChapterNew Orleans Bar Association(President-elect, 2013; FirstVice-President)American Bar Association, EEOSubcommitteeJefferson Bar AssociationFellow, American Bar Foundationand Louisiana Bar FoundationGraduate, New Orleans RegionalInstitute (2007)American Arbitration Association,Panel of Neutrals for both Arbitrationand MediationAmerican Immigration LawyersAssociationLouisiana Hospital Association

Representative Matters

A list of representative matters isavailable upon request.

 Publications/Speeches

Speaks and publishes on a wide varietyof employment related topics on an

annual basis. A list of presentations,speeches, and publications is availableupon request.

Jason Rogers Williams

Biography

Born in uptown New Orleans, Jason Rogers Williams graduated from Woodward Academy in College Park, GA and entered Tulane University and Tulane Law School. After working for two years at law firms post-graduation, he started his own practice. Williams was later appointed to serve as State Court Judge at Orleans Parish Criminal District Court by the Louisiana Supreme Court in 2003. Williams also worked to exonerate and free the wrongfully convicted through his pro-bono work with the Innocence Project. In addition, Williams also served on the Louisiana State Indigent Board’s Director Selection Committee and has also worked as a Professor at Tulane Law School. He has made several guest appearances as a legal analyst on local media outlets. He currently serves on the Board of Directors of the Innocence Project of New Orleans. He formerly served on the Board of Directors of the Partnership for Youth Development, the Board of Directors at Sophie B. Wright Charter School, the Board of Directors at the Audubon Nature Institute and on the Mayor’s Criminal Justice Council. He has been lead counsel at Jason Rogers Williams & Associates for the past twelve years. Williams was elected as a New Orleans City Councilmember At-Large in March of 2014.

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OPENING STATEMENTS, CLOSING STATEMENTS, REBUTTAL &

DEMONSTRATIVE EXHIBITS

DECEMBER 11, 2014

M. Nan Alessandra PHELPS DUNBAR, LLP

365 Canal Street - Suite 2000

New Orleans, Louisiana 70130-6534

Telephone: (504) 566-1311

E-mail: nan.alessandra@phelps.com

THE NUMBER ONE STRATEGY: PICKING THEMES THAT WILL WORK.

In any employment litigation matter, particularly a jury trial, it is essential to pick

out a theme and a sub-themes that will work and develop these themes throughout the

trial. In fact, of all key strategies for effective opening and closing arguments, the key

strategy of developing themes that the jury will follow and that withstand the scrutiny of

opposing counsel is critical. Why is it so critical to develop a theme that will work? As

counsel for plaintiff or defendant, you must grab the jury's attention and make them

listen. Through the years, scholars, legal commentators, jurists and lawyers alike have all

opined about the mercurial nature of jury trials. The following quotes provide a small but

significant sampling of quotes that underscore why developing a theme is so critical.

I confess that in my experience I have not found

juries specially inspired for the discover of the truth

. . . they will introduce into their verdict a certain

amount—a very large amount, so far as I have

observed—of popular prejudice, and thus keep the

administration of the law accord with the wishes

and feelings of the community.

Oliver Wendell Holmes Address, January 17, 1899

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A jury verdict is a quotient of the prejudices of

twelve people.

Kenneth P. Grubb, American Jurist

"False Fears," Insurance Counsel Journal

October, 1959

A jury consists of 12 persons chosen to decide who

has the better lawyer.

Robert Frost (1874-1963)

Kenneth Redden, Modern Legal Glossary (1983)

The classic adversary system in the United States

not only encourages, it demands that each lawyer

attempt to empanel the jury most likely to

understand his argument, or least likely to

understand that of his opponent. You don't

approach a case with the philosophy of applying

abstract justice. You go in to win.

Percy Foreman, New York Times

February 3, 1969

As proud as we trial lawyers are of our abilities, the

fact is that none of our skills, however polished, and

none of our evidence, however, convincing,

necessarily amounts to anything, if we don't have a

jury that is willing to listen..

Johnnie L. Cochran

Journey to Justice with Tim Rutten (1996)

For purposes of the discussion today, Johnnie Cochran said it best: You must get the jury

to listen. How is that accomplished? The answer is simple: develop a theme that will

work.

The following are key examples of important themes that could work, although

there is no guarantee of success.

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I. THEMES THAT CAN WORK.

A. Personalizing the Corporate Defendant.

A major component of any corporate defense strategy and a key component of

any theme established at the inception of the litigation is the attempt to personalize the

company.

B. Recognizing and Neutralizing Inherent Sympathy for the

Employment Plaintiff.

Another key component of an important theme that can work is to recognize but

neutralize inherent sympathy for the employment plaintiff. In many employment

litigation cases, defense counsel is faced with a termination or an employment severance

which—for most people, indeed the majority of people—is unpleasant. To neutralize the

inherent unpleasantness of the employment termination, defense counsel's theme should

focus on the jury's duties and guidelines as the trier of fact. Specifically, the jury should

be told in a straightforward yet uncondescending manner that their job is not to decide the

case based on sympathy, compassion or prejudice; it is not to decide whether

terminations are pleasant or unpleasant; and, it is not to substitute their judgment. Rather,

their job is to put aside their individual concerns for the plaintiff and decide whether or

not the termination violated plaintiff's rights as a matter of fact and law. The concept of

neutralizing prejudice and passion is no small feat.

C. Plaintiff Has the Burden of Proof.

Another key component of a successful theme that can work is never losing sight

of the fact that the plaintiff has the burden of proof.

If one sits in any employment litigation trial long enough, it is likely that you will

hear a plaintiff's lawyer try to shift the burden of proof from plaintiff to the defendant.

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Indeed, quite often you will hear plaintiff's counsel tell the jury that the defendant must

be able to prove whether the termination was just and, if the company cannot, then

plaintiff should win. Defense counsel must be on guard to resist this shifting of the

burden of proof and, more importantly, should make every effort throughout the trial to

establish from voir dire to closing that it is plaintiff who bears the burden of proof in

establishing discrimination, workplace, harassment or any other legally cognizable claim

in the employment arena.

Of all strategies for effective opening and closing arguments, picking a key theme

that will work in personalizing the company, neutralizing the sympathy for plaintiff and

focusing on the burden of proof borne by plaintiff is critical.

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II. DEVELOPING AND EXPANDING THE THEME AND SUB-THEMES CHOSEN

IN VOIR DIRE AND CONTINUING IN OPENING AND CLOSING STATEMENTS.

A. Opening Statements.

The opening statement is often considered the most important part of the trial.

Indeed, jury polling often indicates that many jurors make up their minds at the end of the

opening statement. Accordingly, defense counsel should always make an opening

statement, particularly in a jury trial. However, the opening statement should never be

precisely the same as the closing argument. In fact, the opening should set forth the story

to follow while closing should summarize how that story actually unfolded. Ultimately,

the jury should be advised that, in essence, they will write the final scene of the last act of

the play.

1. Telling a Story.

In the opening statement, defense counsel must tell the jury its side of the

story, i.e., set out your "theme" of the case. Unlike many other aspects of life and law,

repetition here is not a bad thing. Indeed, a concise, cogent opening statement often

repeats key points and themes.

2. Showing Key Exhibits.

In the opening statement, key exhibits should be shown to the jury through

a visual display. It is frequently a good technique to list on a chart or screen the major

points that will be proven. This chart should be referred to again in the closing. It goes

without saying that you should make sure that you live up to your promises on proving

the major points listed on the chart. Otherwise, the chart could backfire. More

importantly, make sure the judge has approved in advance the exhibits and blow-ups you

will be using.

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3. What is the Proper Length of the Opening?

Obviously, the judge will decide how long the opening and closing

arguments will be. Nonetheless, if you expound too long you will definitely lose the jury

at the beginning of the case. In litigating employment cases and in speaking to jurors

afterwards, jurors make no secret of the fact that they like attorneys to get to the point and

to be prepared. These two juror preferences underscore that less is more in the opening

statement.

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B. Closing Statements.

Before the closing argument to the jury, it is absolutely essential to have

instructions to the jury in a final form. Moreover, you should discuss the jury

instructions in closing.

Some key points to remember in the closing statements are the following:

1. Do not emphasize and recount all of the evidence adduced. You

will only put the jury to sleep. Rather, focus on the key evidentiary points

and several key questions and answers elicited on cross-examination to

articulate why, in light of the judge's instructions to the jury, the defendant

company should win.

2. Instruct the jury on how to fill out the Special Jury Verdict Form

and why the record evidence dictates the answers to those questions.

3. Defense counsel should reiterate that, whether fair or not, plaintiff

will get the last word on rebuttal. Defense counsel should also reiterate

that in the rebuttal, plaintiff is not supposed to raise anything new and that

the jury should not construe defendant's failure to respond as any type of

acquiescence on its part. Defense counsel should also ask the jury to rely

on what it has heard during the course of the trial as to how it thinks

defense counsel and the defendant would respond.

4. Give the jury some perspective on damages. Quite often in jury

trials the damages become akin to monopoly money. Some jurors have no

comprehension of whether $100,000 to one company is akin to $5,000,000

at another. Indeed, there is a tendency on the part of many jurors to split

the difference and play King Solomon between what the plaintiff asks for

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and what the defendant contends would be appropriate if liability were to

be found.

5. If plaintiff is seeking an award of everything in wages and benefits

that he/she would have earned from the date of discharge until the end of

his/her career, defense counsel should be prepared to draw an analogy to

wrongful death cases where that is precisely what is done. Defense

counsel should indicate that what plaintiff is arguing is his/her chance of

obtaining any work whatsoever for the balance of his/her worklife are no

better than if he/she were dead. This should highlight the injustice of

awarding lifetime wages and benefits to a discharged plaintiff who is

capable of returning to the workforce.

C. Concluding the Story.

As noted in opening, it is often important to tell a story and indicate to the jury

what you hope to prove at trial. Failing to keep promises you made in the opening

statement can prove fatal. The same holds true for plaintiff. In closing, defense counsel

should hammer home any promise plaintiff did not keep with respect to his or her

opening statement. Defendant counsel should also make sure to go back to his or her

own opening to make sure his or her story is now consistent at the end and, if not, explain

why not. Here, more than ever, defense counsel must get the jury to not only listen to

their story but, more importantly, embrace their story by guiding them slowly and

persuasively through the record evidence with visual aides which lead to your conclusion

as the only conclusion. As the late United States Supreme Court Justice Benjamin

Cardazo cogently stated:

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Justice is not to be taken by storm.

She is to be wooed by slow advances.

Benjamin N. Cardozo

The Growth of the Law (1924)

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III. FINE-TUNING THE SPECIFIC THEMES OF PERSONALIZING THE COMPANY,

NEUTRALIZING SYMPATHY FOR THE PLAINTIFF AND FOCUSING ON THE

IRREFUTABLE FACT THAT PLAINTIFF HAS THE BURDEN OF PROOF AT ALL

TIMES.

A. Personalizing the Company.

As noted above, it is absolutely essential to try and personalize the corporate

defendant. Titles such as "defendant" or "company" get lost on the juror. Accordingly,

personalizing the name is critical and this crosses over to individuals who are corporate

representatives, such as supervisors, managers and co-workers. These individuals should

all be referred to by name. Everything should be done to personalize not only the

company, but the diverse faces of the company as well.

1. Who is the Corporate Representative?

It is often glossed over by defense counsel in the midst of preparing for

trial that the face of the company will often be the corporate representative sitting next to

defense counsel—for better or worse. Choosing that corporate representative is no small

task. This individual must be away from the office or the business and available

throughout the trial. The goal should always be to promote the jury's association of the

corporation with this representative. Choosing a management representative who is too

high in the food chain may backfire, particularly if this individual had nothing to do with

the case or, worse, failed to take action despite his/her position of power.

B. Neutralizing Inherent Sympathy for Plaintiff.

As discussed above, defense counsel must accept the natural feeling that most

terminations are unpleasant and that the jury will empathize and indeed sympathize with

the plaintiff. These emotional reactions will often militate in favor of the jury's wanting

to help the plaintiff. Therefore, defense counsel must stress to the jury as early as the

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voir dire, throughout the trial and again in the closing, that the jury will have such

feelings and will want to help plaintiff. Nonetheless, defense counsel must stress that

their jobs as the trier of fact is not to decide the case based on sympathy, compassion or

prejudice nor is it to decide whether terminations are pleasant or unpleasant; rather, their

job is to put aside their individual concerns for plaintiff who has lost his/her job and

decide whether or not a termination or employment action violated the legal rights of

plaintiff. This point is so critical that it is important to get each prospective juror's

commitment during voir dire that they will be able to decide the case based on the facts

and the law and not sympathy for plaintiff.

Neutralizing the inherent sympathy for plaintiff has many variations on a theme.

Each will be addressed in turn.

1. Driving the Theme Home in Closing That Jurors

Cannot Be Influenced by Sympathy, Prejudice or

Passion.

In almost every employment litigation case, plaintiff's counsel will pitch

sympathy. In closing, defense counsel must take it on directly. Defense counsel should

consider addressing head-on the jury instructions in which the judge instructs the jury

that they may not be influenced by sympathy, prejudice or compassion. Defense counsel

also should remind the jury that, during jury selection, each juror was asked if they would

be able to keep sympathy and prejudice out of their deliberative process. Defense

counsel, if supported by the record evidence, should then note plaintiff's specific tactics at

the trial is trying to elicit sympathy and juxtapose those tactics with the judge's

instructions to the jury.

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2. Point Out the Fairness of the Company's

Response in Dealing with Plaintiff.

In the context of trying to neutralize sympathy for the plaintiff, every

effort should be made to show how the company's actions square directly with its written

policies and how those policies have been applied in the past to other individuals in

similar situations. Additionally, anything nice the company did for plaintiff before,

during and after a termination or employment action should be emphasized at all time,

particularly in the opening and the closing.

3. Plaintiff was Treated Like Everyone Else.

Another key factor to consider in trying to neutralize sympathy for

plaintiff is to emphasize the impact plaintiff's shortcomings/conduct had on other

employees, the company, the customers, etc. If plaintiff was put on a performance

improvement program, all of the factors which precipitated that action should be put into

evidence. Indeed, quite often plaintiff is complaining of not receiving benefits which no

other employee has ever received. The fact plaintiff wants to be treated better than,

rather than equal to, his co-workers is a fact which too often goes unnoticed. Quite often

one hears reference to some individuals who think they are "above the law." This

component should be carried over in the employment litigation context in dealing with a

troublesome plaintiff whose termination was prompted by his/her conduct to demonstrate

that, despite company policies which consistently applied to everyone, plaintiff chose not

to comply but then cried foul. Defense counsel shall emphasize that plaintiff does not

seek equal treatment, but rather, preferential treatment.

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4. Decision-Makers at Issue—

The Good, the Bad, the Ugly.

Quite often in employment litigation matters, plaintiff's counsel tries to

distort the face of the company by seizing on individuals who are so-called "bad" actors.

Defense counsel should make every effort to develop the decision-makers at issue as fair

people so as to offset any undue sympathy for the plaintiff. It is interesting that, quite

often, the true decision-maker is sidestepped so plaintiff can attack the supervisor with

poor people skills even though he or she was not the decision-maker at issue. Defense

counsel should keep the jury's eyes on the ball and develop appropriately (if possible) the

decision-maker as a fair and non-discriminatory person. Indeed, quite often the decision-

maker and/or supervisor is "on trial." Thus, defense counsel should make every effort to

note that these individuals "stand accused" of vile allegations of discrimination and/or

harassment, as the case may be. This should offset or at least neutralize any undue

sympathy for the plaintiff.

Moreover, defense counsel should not and cannot shy away from the fact that

some supervisors/managers are not "role models" for company behavior. In some cases,

the defense counsel may have to distance the company from the "person" and the

"personality" while standing by the legitimacy of the decision. Here, defense counsel

walks a fine line but defense counsel must address the decision-maker and the supervisor

head-on, whether the facts are good, bad or ugly. Jurors will not only expect it but hold

the company accountable for failing to do so.

5. The Big Kahuna—Emphasize the Credibility Gap.

In the Old Testament, Daniel 6:12, it is stated that:

The thing is true, according to the law of Medes and

Persians, which altereth not.

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This Biblical passage underscores the simplicity of one fact: true statements do not

change over time. Indeed, Henry David Thoreau, in Civil Disobedience (1849), opined

that:

The lawyer's truth is not Truth but consistency or

consistent.

In gearing up for trial, particularly an employment litigation trial, both sides are looking

for "inconsistent statements." In an employment litigation case where the plaintiff's

credibility is critical, the Big Kahuna can often rise and fall on the plaintiff's credibility or

the lack thereof.

One critical fact which cannot go unnoticed is the need to point out any

inconsistencies made by plaintiff which may affect his or her credibility. The so-called

"credibility gap" is critical since in many employment litigation cases it is a "he said—

she said" situation. Almost all jurors can understand the significance of someone's being

caught "in a lie." Whether it is inconsistency in tax returns, inconsistency in filings

before the Social Security Administration or other governmental agencies, and/or

inconsistencies during the course of the lawsuit, the trial or in a pretrial investigation,

jurors "get it."

C. Focus On the Fact that Plaintiff Has the Burden of Proof.

In employment litigation cases, plaintiff has the burden of proving discrimination,

harassment and/or other forms of wrongful action by the company. More often than not,

the burden is one of proof by a preponderance of the evidence. Beginning in the voir dire

and continuing through the opening statement, trial and closing, defense counsel must

never shy away from honing in on one irrefutable fact: plaintiff has the burden of proof.

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1. Do Not Shy Away from Emphasizing What the

Burden of Proof Entails.

Particularly in the closing argument, defense counsel should focus on what

the burden of proof imposed on plaintiff means. Emphasis should be given to the fact

that it is not merely enough for plaintiff to accuse defendant of wrongdoing so that

defendant must now prove the absence of guilt. Your position on this point should be

underscored by the judge's own instruction to the jury as to what that burden of proof

means. A final component of this sub-theme is informing the jury why this burden of

proof is such an integral concept in our system of justice.

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SUGGESTED RESOURCE REFERENCE MATERIALS FOR

EFFECTIVE STRATEGIES IN OPENING AND CLOSING ARGUMENTS

1. Ball, David, Theater Tips and Strategies for Jury Trials, Chapter 10

(NITA, 3rd

Ed. 2003).

2. Fallon, Eldon E., Trial Handbook for Louisiana Lawyers, Chapters 7 and

29 (Lawyers Cooperative Publishing Ed., 2nd

Ed., 1992 & Supp. 2005).

3. Fontham, Michael R., Written and Oral Advocacy, Chapters 7 and 8

(John Wiley & Sons, Inc. 1985).

4. Stern, Herberg J. & Saltzburg, Stephen A., Trying Cases to Win,

Chapters 2 and 14 (Aspen Law & Business 1999).

5. Tigar, Michael E., Persuasion: The Litigator's Art, Chapters 3 and 5

(ABA 1999).

PD.13950086.1