Disgruntled Ex-Employees
Preparing for and dealing with disgruntled ex-employees is critical in environmental criminal defense. Once the jury is seated and the trial underway, the single largest issue looming for the defense team is the impeachment of the disgruntled former employees who are expected to testify.
This is how we prepared in the Baytank case. Although the defense team did not know when the former employees would testify, or in what order, the Government was kind enough to identify, at the end of each day, who would be testifying the next day. As a result, the only real scrambling about was done on the first full day of trial, as the defense team was not provided with the names of the witnesses to be presented on the first day of trial.
The Government’s witness list identified no less than eight (8) former employees and six (6) current employees as witnesses. Through the investigation and preparation of the case for trial, the defense team identified and had interviewed, several times, each of these former and current employees listed as witnesses. As a result, the current and ex-employees identified as witnesses did not surprise the defense team and the defense team felt that it had a good handle on the areas of testimony each individual might cover. The trial preparation, supplemented by the grand jury testimony released pre-trial by court order, proved to cover all areas of expected testimony. Ultimately, four ex-employees and four current employees testified for the prosecution.
The preparation for cross-examination of the ex-employees began right after the indictment and involved several common themes. First, the defense team assumed that the ex-employees would testify and that they were all “disgruntled” ex-employees. Second, the defense team assumed that each disgruntled employee was disgruntled for a reason. Finally, the defense team knew that, if the ex-employees were truly out to exact revenge, they would delight in telling their stories.
With these assumptions, the detail work began. First, we identified all ex-employees and then we made a preliminary determination as to which ex-employees would be the most likely to be disgruntled and why. Reasons for categorizing ex-employees varied. For example, the ex-employee may have been passed over for promotion, may have been demoted, may not have been given a pay raise, may have been reprimanded, may have been fired or may have been subjected to a whole host of other real or perceived slights. In each instance, the defense team tried to identify the particular reason that the ex-employee may have been disgruntled. In two instances, the motivating factor was that the ex-employees had apparently been “promised” certain status and duties during plant construction and, after the facility had been constructed, the promises had not been fulfilled. As it turned out, neither were “promoted,” as one was not qualified to handle the job and the other was incompatible with management. Two other disgruntled ex-employees had been fired for sloppy housekeeping practices and attitudes at work. Another disgruntled ex-employee had been terminated because of problems with alcohol. After determining these particular factors, the defense team made a concerted effort to contact and interview each of these former employees. Given the number of times that each ex-employee was interviewed, the defense team obtained an extremely good flavor as to their character, background, demeanor and potential weaknesses for cross-examination. The benefit, aside from the obvious, was that the more times each ex-employee told their story the more committed they became to their version of events. If they were weak on the facts, it could be exposed in cross-examination; if they were not we were able to expose other areas. Ultimately, the single largest benefit was unplanned. Each ex-employee was interviewed as many times as possible, going over the events time and again. As a result, most, if not all, of the pure venom was gone by the time each testified.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii