WHAT CAN YOU PROVE

Hollywood portrays many aspects of litigation incorrectly.  This is less of a criticism than it might sound like.  It is natural that the needs for drama and time constraints overwhelm the push toward absolute accuracy.  What is more, one of the movies’ favorite catchphrases actually is true.  What you know does not matter, only what you can prove.

So we ask, what is proof? The question came up in a Federal Court of Appeals recently in the context of an age-discrimination lawsuit.  Two witnesses testified how they always thought older employees had it harder, that management tried to push them out, how they felt the workplace was hostile to older workers.  The plaintiff might have thought that was golden testimony.  It was not.

What needs to be proven in courts are the facts of the particular case.  In an age discrimination matter, the plaintiff must prove that he was fired or demoted (to use two classic forms of adverse employment actions) because he was older.  Fellow or former employees who “merely provide the[ir] thoughts and feelings … regarding the workplace” fall short of providing direct proof of the hard fact that another employee – the plaintiff – was actually fired because of his age.  Without proof of that, the case was thrown out before trial.

It is no urban legend that well over 90% of civil cases do not go to trial.  But it is not always because they settle.  It is often because either party lacks the level of proof necessary to keep the case going.  Most of the legal work takes the form of minutia and attention to details, long before the “razzle dazzle” of tv lore.