Chris McCarty – The Five Plaintiffs We Dread

The Five Plaintiffs We Dread
By Chris W. McCarty

 Andy Warhol once said, “Isn’t life a series of images that change as they repeat themselves?” As an employment lawyer, particularly a defense lawyer, I would modify that thought only slightly: “Isn’t life a series of the same plaintiffs whose faces change as they repeat themselves?” The longer I have done this job, the more I have experienced the same (type of) plaintiffs. And these are the five who consistently annoy me the most:

1. Ms. Failure to Mitigate

Def. Atty:      Have you worked at all since being laid off by my client?
Plaintiff:        Define “worked.”
Def. Atty:      To perform a task for which you get paid.
Plaintiff:        Sure.
Def. Atty:      Okay, who have you worked for?
Plaintiff:        When?
Def. Atty:      Since you got laid off by my client.
Plaintiff:        And gotten paid?
Def. Atty:      Yes, that’s how it typically works.
Plaintiff:        Oh, well no one then.
Def. Atty:      So, since you were laid off by my client, two years ago, you have not worked?
Plaintiff:        I’ve worked.
Def. Atty:      You’ve held a job?

This particular plaintiff infuriates as much as she dances. There is no clear question, and there is no plain timeline. She “may” have looked for jobs, but she can’t recall when, or how, or using what. She is an extremely hard worker, always has been, yet keeping a job remains difficult due to a run of bad luck.

2. Mr. Perfect

Def. Atty:       Would you agree that you sometimes struggled arriving at work on time?
Plaintiff:         Absolutely not.
Def. Atty:       So, you were consistently on time?
Plaintiff:         Always.
Def. Atty:       I have your time cards, and once or twice every week you were at least 20 minutes late, right?
Plaintiff:         Look, I was there to work. Every day. All day. Usually early. A lot of time I would just start working and forget to clock-in.
Def. Atty:       Sir, can we agree you were a mall security guard who was supposed to arrive by 9:00 a.m.?
Plaintiff:         Every… Day.
Def. Atty:       Can we also agree the mall didn’t open until 10:00 a.m.?
Plaintiff:         Define “job.”

Paul Blart here is not unlike a lot of employment plaintiffs. They do not make mistakes. They do not have weaknesses. And they have no hesitation when (vehemently) expressing their importance to the company (or to mankind in general).

3. Ms. I Didn’t Sign That

Def. Atty:     Ma’am, I am passing you what has been marked as Exhibit No. 13. Do you recognize this document?
Plaintiff:       No, never seen it before.
Def. Atty:     Please look again, as I believe you’ll see your signature at the bottom of the page.
Plaintiff:       Not my signature.
Def. Atty:     Let’s look back at Exhibit No. 2, which is your driver’s license. I’ll hand it back to you.
Plaintiff:       Okay.
Def. Atty:     Do you see your signature there on that driver’s license?
Plaintiff:       I see “a” signature.
Def. Atty:     Are you saying the signature on your driver’s license is fake?
Plaintiff:      I’m not saying anything other than I didn’t sign it.
Def. Atty:    Any theory as to who signed for you?
Plaintiff:      The Tooth Fairy for all I know.

At this point in my career, I have no idea how many times plaintiffs have refused to identify their own signatures. On discipline notices. On change of status forms. Even on notarized documents. I really never had a clue how many people live in a world in which vast amounts of forgers line the streets and cause chaos with their pens.

4. Mr. They Fired Me

Def. Atty:   Tell me about your last day with my client.
Plaintiff:     You mean the day they fired me?
Def. Atty:    Why do you believe that you were fired?
Plaintiff:      Because I got there with a job, and I left without a job.
Def. Atty:    Help me understand that.
Plaintiff:     Okay. They called me into a meeting. Started lying. Wouldn’t stop lying. So, I left.
Def. Atty:    You were called into a meeting about getting into a fist fight with another employee?Plaintiff:      A disagreement.
Def. Atty:    And your supervisors wanted to discuss that disagreement with you?
Plaintiff:     No, they wanted to start lying about me punching Jimmy.
Def. Atty:    Didn’t you punch him?
Plaintiff:      Not in the face.
Def. Atty:    Okay, but when were you actually fired during that meeting?
Plaintiff:      You think I was just gonna keep working there after that mess?
Def. Atty:     Let me rephrase… Did anyone ever say, “You’re fired?”
Plaintiff:      With their eyes.

It is honestly astounding how many words are apparently synonyms for “fired.” Laid off means fired. Suspended means fired. Disciplined means fired. I once had a plaintiff tell me she had been “fired” because a supervisor raised his voice after the plaintiff lost over $200 from her cash register.

5. Ms. I Never Knew That

Def. Atty:      You had an opportunity to review the Employee Handbook during the break, correct?
Plaintiff:        Yes, I read through it.
Def. Atty:      Do you recall being provided with a copy of the same Handbook during employee orientation?
Plaintiff:        Nope.
Def. Atty:      But you saw your signature on the last page of the Handbook?
Plaintiff:        I saw it.
Def. Atty:      Yet you don’t recall ever seeing this Handbook before today?
Plaintiff:       I’ve seen a lot of things, even signed some of them. But I never read this.
Def. Atty:     Do you have a habit of signing documents you have not actually read?
Plaintiff:       I also have a habit of biting my nails. Drives my husband crazy.

I am more surprised now during depositions if employees have read their handbooks. Truth be told, I often wonder how many jurors would say the same. I went to school to become a lawyer, and even I scroll through that iTunes user agreement before reading the word “the.”

If you happen to run across any of these plaintiff types, do what I do: fantasize about having attended dental school rather than law school. In all seriousness though, you have seen these plaintiffs, and you will see them many times again in the future. Take a deep breath, stare at your deposition outline for a few seconds, and get back to work. It could be worse. You really could be a dentist.

Chris McCarty’s publication “The Five Plaintiffs We Dread” was in the DRI’s newsletter of the Employment and Labor Law Committee’s November 2, 2018 issue. To see the article in the Volume 30, Issue 3 click here.


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