How You Can Use Opposing Counsel’s Misstatements to Your Advantage in Your New York Discrimination Case

In civil litigation matters, including discrimination and harassment cases, attorneys make many assertions and arguments. To the ears of non-lawyers, some of those statements can seem extreme or inflammatory when, in actuality, they’re really mundane. At the same time, a lawyer might say something that sounds ordinary or trivial to a layperson that a skilled legal professional would immediately identify as grossly inappropriate and very important. That is just one of the countless reasons why you need an experienced New York discrimination lawyer handling your case.

A seasoned pro will both be able to spot those prejudicial comments and also know what to do about them. And knowing what to do is absolutely essential because, if you don’t take action at the right time, then that misstep may alone be enough to sink your argument, even if the other side said something completely improper.

The recent disability discrimination case of J.H., who was an Iraq War veteran, a sufferer of post-traumatic stress disorder (PTSD), and a security worker for a New York State psychiatric center, is a good example. On multiple occasions, the man applied for a promotion but was never successful. A colleague testified that J.H. was denied his promotion because the agency’s decision-makers had doubts about his mental stability after his military service.

In arguments that took place after the presentation of all evidence in J.H.’s disability discrimination and military status discrimination case, the defense attorney asserted that J.H. had to meet his burden of proof before the psychiatric center’s director of human resources “can be forced to open up her checkbook and write somebody a check.”

Now, that might sound, to most laypeople, like a fairly ordinary kind of statement for a lawyer to make in a summation. Fortunately for J.H., he had skillful legal representation and his attorney recognized the impropriety of that statement. The plaintiff’s attorney objected right away, arguing that the remark was prejudicial and was an incorrect statement of the law.

That prompt objection later proved to be a key component of J.H.’s successful appeal. The Appellate Division, in making a decision in the worker’s favor, ruled that the defense lawyer’s statement about his clients’ “checkbooks” created a problem that entitled J.H. to a new trial. The employee was only able to win this appellate argument because that alleged error was what’s called “preserved” for appellate review. (If an argument isn’t “preserved,” then the appeals court cannot grant you a new trial, even if your underlying argument was correct.) In this case, the key to that preservation was the timely objection by J.H.’s trial attorney.

When the defense attorney talked of his clients having to “open [their] checkbook,” it denied J.H. of a fair trial in several ways. For one thing, it was grossly improper under New York law. New York courts have “universally condemned” for many years “references to the financial status of parties.” It also may have unfairly “engendered sympathy” for the defendants “in the jurors’ minds.”

Not just improperly working up jurors’ sympathies, but also misstating the law

On top of those things, the checkbook reference also served as a misstatement of the law in New York. The state government has a legal obligation to indemnify its employees from court judgments if those lawsuits arose from actions that took place within the scope of the defendant’s public duties. In other words, if a state government worker is held liable for paying a successful plaintiff, and the lawsuit is related to something the state employee did in her official capacity as a state worker, then the state government bears the legal obligation to pay that judgment. What that boils down to is that, absent proof of intentional misconduct (which J.H. did not even allege in his case,) none of the individual state employees could possibly have been at risk of being required to “open [their] checkbooks.” That made J.H.’s trial unfair and entitled him to a new one.

You may have seen notebooks, t-shirts, or hats that say “don’t sweat the small stuff.” In an employment discrimination case, including the trial on those claims, that is definitely not true. There can be a lot of seemingly small stuff that is well worth sweating as it may make the difference between success and defeat. When it comes time to take legal action, make sure you have a team that knows what to sweat and what not to. Rely on the New York disability discrimination attorneys at Phillips & Associates. Our attorneys have spent many years fighting for working New Yorkers like you and they are ready to take on your case. Contact us online or at (866) 229-9441 today to set up a free and confidential consultation.

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