Moral Support - February 25, 2008

Every once-in-a-while, things just lock into place, and this hearing was one of those times.

The hearing was a continuation of an adjourned case that was closed and rescheduled because we ran out of time at our last go-around.

My Partner was already "done" with his part. He had already not asked any questions the first time we were there. The Client is the really nice, very naturally believable one, so it made my job doing the direct examination a breeze. Unlike just about every other time, I got through the examination without being interrupted.

I was going to bring out background about his living situation (where he takes care of two mentally disabled kids, a mentally disabled and extreme diabetic Brother, a 17 year-old niece along with his wife - during my closing I was going to draw attention to the fact that he is the provider for a 17 year-old girl, enough to run anybody crazy), but decided against it as I thought the judge was going to disallow the line of questions for reasons of relevance.

However, the judge then began asking questions about his home and driving situation, drawing out reasons why he would ever be late to work. The Judge did my job for me.

It was spectacular.

After we were done with some spectacular questions and answers, the employer had a chance to cross-examine my client. What followed was even more beautiful, as every time he asked a question, my client gave him an answer he was not ready for. It was wonderful. After he asked a few questions, my Client was done.

The Judge then said that he wanted to, once again, telephone a witness from the employer (who had already testified via telephone at the previous hearing).

The Judge asked if we had anything to say before the call occurred, and I questioned the Judge's reasons for recalling the witness. He said he had questions to ask, if that was alright by me. I told him that I would love another opportunity to re-cross the witness, and to go right ahead.

This next part is key.

The Judge asked the employer if the manager would be available by phone again. The employer answered that the Manager was "ready and waiting by the phone for a call." (Keep this statement in mind for later.)

Once on the phone, the Judge asked a few questions, followed by some questions from the Employer. Then the Judge asked me if I had any questions. I told him that, in fact, I did.

My very first question to the Witness was regarding any conversations or discussions he may have had with his employer about this case and my client since my client's termination.

He answered, very surprisingly, "No. I have never spoken with my employer about this case."

I, obviously taken aback, asked a clarifying question.

"So, you are saying that you had no idea you would be getting a call today during the hearing."

Again, he answered "No." Deal sealer. Insert damaging character impeachment into my closing.

So, after a number of questions that he answered to my liking, I asked a final one, which the Judge stopped me from asking at first. I was trying to disprove an element of misconduct, that with which he was charged.

The Judge explained to me that I could easily get an answer from my client. I told him that I understood this, but wanted to hear it from the Employer's witness. I got the answers I wanted, and we proceeded to dismiss the witness.

After the call, the Judge asked if we had anything else, and I figured I had nothing to lose. I asked him to subpoena a witness, who we had not been able to get in touch with. He asked who the witness was, and all we had was a first name.

Unluckily, the name we had is one of the most common Latino first names in the world. The Judge turned to me and said, "Mr. H, you cannot be serious. Do not even get me started on how many people have that name."

I responded by saying that I understood the problem that this could potentially amount to, and that he had to give me at least some respect for trying.

He asked for an offer of proof - basically what the witness would provide and how we knew he would provide it.

I was unable to do so, and he told me what every judge in the world says: "No fishing expeditions in my room."

I said, "Understood. We are more than ready to proceed with closing arguments."

The Employer stumbled and mumbled along in his two line closing statement.

After he was "done," it was my turn

During the closing I drew the Judge's attention to the fact that, today, on the record, we have two very different statements, and that we have no reason to believe anything that was said.

I drew his attention to New York Labor Law, the employer's failure to meet his burden, and the fact that the employer himself said that this was an issue of performance, which is very different than misconduct.

I included a discussion regarding his living situation, and that there was no evidence of any warnings, verbal or written.

I also covered the fact that the Employer, in his closing argument, and during testimony was not even able to say that he verbally warned my client. All that he could say was that he "verbally coached" my client. I couldn't make that up if I tried

What in the world is "verbally coached" anyhow?

I finished the statement by re-emphasizing the fact that he worked for them for 7.5 years, and that each of those years he was given a bonus. Employers do not give bonuses to employees who do something wrong. I cited the Labor Law, and left the Judge with the statement: "Do what is just, do what the Law requires, reinstate benefits for my client..."

My Partner was stoked about the hearing. Everything went pretty darn well. As we were driving back to school, the guy turned to me and nearly made my spleen rupture from the internal laughter it provoked.

He said, "We are getting much better."

Yes. WE have done so much better. The four questions that you weren't allowed to ask this time were of a much higher quality than those that you weren't allowed to ask last time. Thanks for nothing, jerk.

I did not actually say that. He is big. This, I guess, is karma. I remember a time when I recruited him for his physical presence. I got exactly what I wanted. I got nothing more.

He wrote down all of two notes during the hearing, both of which he was writing down to assist me defend our client. The first one was completely wrong, and the second I obviously knew, because I was asking questions to prove it.

"Thanks, dude. Thanks for everything."

What is he good for?

Moral support.

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Closing Argument

My Client is a hard-working employee and caring provider for two disabled children and a wife. Mr. Client gives only his best, when others would give just enough to get do the job. He is a respectful man who values a hard day’s work. We know this because, for each of seven years prior to his termination, his Employer rewarded him with a sizeable monetary bonus.

Mr. Client was so very highly valued as an employee that the management fervently pushed and persuaded him to stay with the company, even under his known circumstances. They condoned and tacitly consented to Mr. Client’s situation. The Appeal Board has found that doing so removes the ability for the employer to claim misconduct. Mr. Employer, himself, could not even state outright that Mr. Client was ever warned. All that he could say was that Mr. Client was “verbally coached.”

When called into Mr. Employer’s office on his final day of employment, Mr. Employer warned Mr. Client, that “if he ever showed up late, even five minutes after 9:00AM, Mr. Client would be fired.” The firing then occurred suddenly and without discussion. He was warned about being late one minute, and then fired the very next. Mr. Employer did not even consult Mr. Client’s supervisor before terminating his employment. Something does not add up.

There was no company policy about lateness. There is no evidence of warnings about Mr. Client ever being late. The only evidence the employer could produce were timecards that not only have no identifying marks made by Mr. Client, but at least three other, very distinct handwritings, none of which belong to the him. Additionally, the signature line on each of the timecards is not signed by my Client.

Drawing Your Honor’s attention to New York Labor Law, the employer must demonstrate, using clear proof, that the employee acted knowingly and willfully in his actions in an attempt to disregard the employer's interests in a manner that was detrimental to the employer's interests. Not only has Mr. Client’s former employer failed to prove such, we know the opposite. In fact, the Employer and their witnesses unwittingly testified to these facts.

Finally, we know that somebody sitting here is lying. Today we heard Mr. Employer say one thing on the record, when the very next moment Mr. Employer’s own witness stated the opposite. Fortunately for my client, we now know which party is lying.

Mr. Client was a hard-working employee who received raises, promotions and bonuses. What we have here, is a man who has no reason to lie, while there is a company that has everything to lose.

Everybody loses their temper at one time or another. Unfortunately for Mr. Client, his boss lost his temper and fired him without reason. Find for Client – give him the unemployment benefits he justly deserves.