How Witnesses Can Transform Your Employment Case

Employees often focus on whether what happened to them was illegal. That is obviously important. But when an employment attorney evaluates a potential harassment, discrimination, or retaliation case, there is another question that can be just as important: Can we prove what happened?
Many employment cases necessarily involve disputed testimony, often referred to as "he said - she said" situation. But the presence of a credible witness -particularly an independent witness who has no apparent reason to favor the employee - can substantially change the strength of a case. 

Here is a very realistic example. An employee tells her supervisor that she needs intermittent time away from work because of a medical condition. According to the employee, the supervisor responds: "I need people I can count on. If your medical problems are going to interfere with your work, maybe this isn't the right job for you." Two weeks later, the employee is terminated.

The supervisor denies ever making the statement. The employer contends that the employee was terminated solely because of performance problems.
The employee may have viable disability discrimination of FMLA / CFRA interference claims claims, but there is an obvious evidentiary problem - did the employer actually make the discriminatory statement in question? 
A jury could believe the employee. But it could just as easily believe the supervisor. 

Even One Independent Witness Can Make A Case Much Stronger 
Now change one fact. Another manager happened to be standing nearby and heard the supervisor make the statement.
That manager no longer works for the company and has no relationship with the employee. When contacted later, the former manager confirms:
"Yes. I heard him say that. I remember being surprised when he said it. And I am willing to confirm this in writing by signing a declaration or testifying to this if necessary."

This does not automatically mean the employee wins. There may be other disputed issues, including whether the employee was performing satisfactorily and why the termination actually occurred. But the employer now has a much more serious evidentiary problem. The jury no longer has to decide the issue solely by choosing between two interested parties. A seemingly neutral third person, who doesn't seem to have a reason to lie, corroborates one side.
As a practical litigation matter, that can substantially change how both sides evaluate the risk of taking the case to trial.  

Stronger Evidence Usually Means Stronger Settlement Leverage
Most employment cases never reach a jury. That does not make trial evidence unimportant. Settlement negotiations are heavily influenced by what each side believes is likely to happen if the case does not settle and it does go to trial. 

Imagine two retaliation cases involving similar alleged damages.
In Case A, the employee alleges that the manager threatened to fire him for complaining to HR. The manager denies it. Nobody else heard the conversation.
In Case B, the employee makes the same allegation, but two coworkers heard the threat and one reported it in an email the same day.

Even if the legal claims and damages are otherwise similar, the litigation risk presented by the two cases may be very different. An employer evaluating Case B must consider what happens when those witnesses testify before a jury. That increased litigation risk can and often does translate into increased settlement leverage.

Therefore, it's really worth contacting as many potential witnesses  as possible and finding out whether they have any relevant information to your case and whether they would be willing to speak to your attorney, even if only confidentially. This doesn't cost anything, but it can make a difference between a "maybe" case to a much stronger case in your favor. 

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