Evidence in Employment Litigation: Preparing for Trial

Employment litigation is the legal process of resolving workplace dispute through the court system. Like any legal case, you will need evidence to prove your claims and recover compensation.

Without evidence, your employment case won’t succeed. For more information about what evidence you need to prepare for trial, talk to an experienced employment litigation attorney.

The Role of Evidence in Employment Litigation

Employment lawsuits rely on evidence to show the judge and jury how your employer violated the law and why you should recover compensation. Evidence allows the judge or jury to see or hear what happened and make an informed decision in your case. In a civil case, you’ll have to prove your claim by a preponderance of the evidence.

What exactly you’ll have to prove depends on the type of claim. Common types of employment litigation include:

• Employment discrimination claims involving protected classes
• Sexual harassment and hostile work environment claims
• Retaliation and whistleblower claims
• Breach of employment contract claims
• Wage and hour violations claims

Types of Evidence in Employment Litigation

Relevant evidence is anything that tends to make the existence of an important fact more or less probable. Evidence includes physical evidence and verbal evidence. The types of evidence commonly used in employment law cases depend on the type of claim. Types of evidence for trial preparation include:

• Emails
• Text messages and social media messages
• Performance reviews and evaluations
• Job description and duties
• Medical records
• Response to EEOC charges
• Records from human resources
• Coworker testimony
• Payroll records
• Photos or video
• Employee handbook
• Employment contract

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Discovery in Employment Litigation

Employment litigation is a long process. It generally starts with contacting an attorney and explaining what happened. Your attorney can go over your legal options and discuss the pros and cons of traditional litigation versus alternative dispute resolution (ADR) such as mediation or arbitration.

Your attorney may start by notifying your employer of the dispute to see if you can settle the claim without going to court. If not, the court process starts with filing a complaint. The complaint lays out the basic claims and what you are seeking from the court. The employer then files an answer. These are the pleadings. The parties generally amend the pleadings and then begin discovery.

Discovery is the process of gathering evidence from both sides. Parts of the discovery process may include:

• Depositions (getting testimony from the parties and witnesses)
• Interrogatories (written questions and responses)
• Document production
• Subpoenas to produce records or other physical evidence
• Examining a location or property
• Medical exam

If you think your employer is not handing over important records, your attorney can file a motion with the trial court to compel production. This requires defense counsel to produce the requested documents or face penalties.

Strategies for Gathering and Presenting Evidence

Gather any evidence you have that relates to your case. Keep a file of important documents so you will have them ready to show your attorney.

Even if you don’t think some documents or records are that important, your attorney will have a better idea of what can help your case. Your attorney can review the evidence and let you know what other evidence you should gather.

Emails and Work Documents

Many employees use company email accounts and office software for their work. Some workers also use company-provided computers or phones. When you leave the job, you generally lose email access and access to any files or data on your computer. Some of that information may provide the best evidence in your discrimination or harassment case.

Consider printing and saving some of these emails and files. You can also set up a separate email account to forward emails and documents. However, this may alert your employer that you are preparing for litigation. At a minimum, keep a list of important documents and emails. Log the dates, location, who is involved, and general summary of the message.

Using Evidence To Prove Your Case

Discovery generally involves sorting through a lot of information to identify key pieces of evidence. Your attorney will present that evidence to prove your theory of the case. However, not all evidence is admissible in court. There are rules of evidence to determine what types of evidence are admissible. For example, hearsay is an out-of-court statement offered to prove the facts of the case. If the person who made the statement is not in court to testify, the statement is not reliable.

Some employment litigation cases use an expert witness to explain complex evidence to the jury. If your case involves specialized knowledge or subject matter, an expert in that field can explain the evidence so the jury can make an informed decision. For example, an economic expert can give their expert testimony on the economic damages suffered as a result of your unlawful termination.

Jury trials generally involve opening statements, presenting evidence, witness testimony, cross-examinations, and closing arguments. The judge then reads the jury instructions and the jury deliberates to decide the outcome. Even after the verdict, it may not be over. Either party can file an appeal, which could further delay resolving your case.

Legal Help With Trial Preparation

Litigation is an unfamiliar process for most people. An experienced employment lawyer can give you a roadmap and legal advice every step of the way. Contact an experienced employment litigator to get started on your case.