On January 26, 2017, Console Mattiacci Law, LLC won a jury verdict in federal court on behalf of former employee, Robert Braden, in an age discrimination case against Lockheed Martin Corporation. Mr. Braden was represented by Rahul Munshi and Emily R. Derstine Friesen, both of Console Mattiacci Law, LLC. The unanimous jury verdict was rendered after a four day trial in the U.S. District Court for the District of New Jersey before the Honorable Judge Renee Marie Bumb. At the time of his layoff, Mr. Braden was 66 years old, and had worked at Lockheed Martin for approximately 29 years. The case involved a reduction in force which Mr. Braden claimed was an effort by Lockheed Martin to target older workers in a scheme to lay them off and replace them with younger workers. The verdict included a punitive damages award in the amount of $50,000,000, pursuant to the New Jersey Law Against Discrimination; all of the economic loss sought, totaling $520,000; liquidated damages of $520,000, pursuant to the Age Discrimination in Employment Act; and pain and suffering damages of $520,000. The verdict is one of the largest ever obtained by an individual plaintiff in an age discrimination case.
Console Mattiacci Law, LLC won a jury verdict in federal court on behalf of former employee, Mike Jackson, in a disability discrimination and retaliation case against the casino, Golden Nugget of Atlantic City. Mr. Jackson was represented by lead trial counsel, Laura C. Mattiacci and was assisted by Lane J. Schiff, both of Console Mattiacci Law, LLC. The verdict was rendered on December 13, 2016, after a six day trial in the U.S. District Court for the District of New Jersey before the Honorable Joseph H. Rodriguez.
Mr. Jackson had worked at the Trump Marina as a dealer and dual-rate supervisor for 25 years when he was diagnosed with throat cancer. After medical leave for treatment, which included the removal of a salivary gland and radiation that caused damage to his throat, he returned to the workplace needing an accommodation under the Americans with Disabilities Act (“ADA”) to have water with him at all times and to be able to chew gums that promote salivation. Mr. Jackson alleged that he was granted this accommodation for nine months, but that in March of 2011, when the Golden Nugget was in the process of purchasing the Trump Marina, he was told he needed to submit medical forms to substantiate his need for the accommodation, which he did, but then was denied the accommodation. Mr. Jackson alleged he complained to management and human resources about the denial of water and gum, but nothing was done. Approximately two months later, when the sale of the property was finalized, all Trump Marina employees, including Mr. Jackson, lost their jobs. However, Golden Nugget hired 85% of the workforce to stay on board with Golden Nugget – Mr. Jackson was not hired. The Defendants claimed that Mr. Jackson never complained about the accommodation denial and that he was not hired because he had a history of being hostile and negative toward management, was unsupportive of management, and was unable to adapt to change. The case was originally against Trump Entertainment entities as well as Golden Nugget entities, however, after litigation commenced, the Trump defendants filed for bankruptcy and were dismissed from the case, resulting in Mr. Jackson’s failure to accommodate claim being dismissed. The trial proceeded against Golden Nugget for failure to hire due to disability discrimination and retaliation under the ADA and New Jersey Law Against Discrimination (“NJLAD”).
The jury found that Mr. Jackson’s disability was a determinative factor in Golden Nugget’s decision not to hire him. They also found that his request for an accommodation and/or alleged complaint regarding the failure to accommodate him was a determinative factor in Golden Nugget’s decision not to hire him. The jury was asked only to assess “compensatory damages” (compensation for pain, suffering, inconvenience, mental anguish, or loss of enjoyment of life) as a result of the failure to hire and returned a unanimous verdict of $340,000. Mr. Jackson, who made approximately $48,000 a year, also has back-pay losses of approximately $170,000 as well as front-pay losses, the award of which will be determined by the Judge. A petition for reimbursement of attorneys’ fees and costs will also be submitted, which Mr. Jackson’s counsel believes should bring the final award to approximately $1 million.
About Console Mattiacci Law, LLC
Console Mattiacci Law, LLC is an employment rights law firm with offices in Philadelphia, Pennsylvania and Moorestown, New Jersey. Since its inception in 1990, the firm has focused its practice on the representation of current, former and potential employees concerning work-related matters. The lawyers at Console Mattiacci Law, LLC counsel whistleblower-employees who have been retaliated against and individuals who have been victimized by illegal employment discrimination and retaliation, including sex, race, religion, disability and age discrimination and sexual harassment at work. They also represent employees concerning medical leaves, disability benefits, wage and hour claims, employment contracts, severance agreements, stock option plans, and class action lawsuits. For more information visit: www.consolelaw.com or call Console Mattiacci Law, LLC at 215-545-7676.
When lawyers say “settle this case or we’re going to trial” the vast majority of the time they are bluffing. This is because in order to adequately prepare for and try a case, the lawyer would have to set aside the ongoing work, and impending deadlines, of 40-50 cases to focus solely on the trial case. It simply can’t happen. The case is going to settle no matter what and usually for less than its maximum potential…but not at Console Mattiacci Law, LLC. This is because we do it differently. I carry a case list of 1 – the one case going to trial next. Once summary judgment is denied, I receive a delivery of boxes and electronic data containing the depositions, documents and motions which have been gathered and written by another lawyer in the firm. Some say: having not lived the case during discovery aren’t you at a disadvantage? How can you possibly ingest all of the facts at this stage? Simple – I am able to spend all day, every day, focused on that one case. I get to view it with fresh eyes, often crafting arguments for trial that the opposing side has neither heard nor, hopefully, anticipated. I have one job: to try the case. My calendar has one entry: trial. All settlement negotiations are handled by Steve Console. My focus remains singular: verdict.
Trying a case is a completely different animal than discovering a case. It takes a different skill set which can only be improved with days spent on your feet in the courtroom. In addition, most lawyers do not have the time, nor the realistic need, to dig deep into the rules of evidence, spend days at a seminar solely on the art of closing arguments, or remain on the brink of the latest trial technology and jury selection research. But I do and I love every minute of it. Our unique set-up has produced formidable results: earlier this year we obtained a six-figure, unanimous federal court age discrimination verdict against AT&T; in 2013, we secured a $1.678 million verdict, plus attorneys’ fees and costs, for a whistle-blower – the largest employment law verdict that year; in dozens of other cases prepared for trial they settled either right before it started or after several days of trial, often for ten to twenty times the pre-trial settlement offer. We’ve had only one loss which, as they say, taught me more than the wins combined and served to heighten my motivation for the next one. This arrangement is a team effort – from the receptionist who takes the initial call, to the legal assistants who work into the night making sure we are organized and seamless, to the lawyers building the case and fighting the motions to get us to the promised land.
So when Steve Console is at mediation and says: “settle this case or we’re going to trial” he’s not bluffing. I’m waiting eagerly for the call.
Laura Carlin Mattiacci is a partner at Console Mattiacci Law, LLC. In 2015, Laura was named to three “Top Lists” by Philadelphia Magazine and Super Lawyers: “Top 100 Attorneys in Pennsylvania” (one of 11 women on the list); “Top 100 Attorneys in Philadelphia” (one of 10 women on the list); and “Top 50 Female Attorneys in Pennsylvania.” In 2014, Laura was also named to the list of “Top 50 Female Attorneys in Pennsylvania” by Philadelphia Magazine and named a “Top Attorney” by South Jersey Magazine.
Welcome to Console Mattiacci Law, LLC Summer 2016 Newsletter!
We hope you have been enjoying our newsletters highlighting the latest developments in employment law and our firm’s recent accomplishments.
STEPHEN G. CONSOLE NOTED IN LAW 360 FEATURE
When an opposing lawyer was asked: “Name a trial attorney, outside your firm, who has impressed you and tell us why” here was his fantastic answer:
A: Stephen G. Console of Philadelphia has a well-deserved reputation as one of the most outstanding plaintiff’s employment law attorneys in the United States.
His trial skills are truly outstanding, but the most remarkable things about him are his professionalism in dealing with the clients and his ability to evaluate cases quickly and accurately. I invariably learn a lesson in professionalism when I have the opportunity to send a client to him and his colleagues.
Several attorneys are recognized on the 2016 Super Lawyers and Rising Stars lists featured in Pennsylvania Super Lawyers Magazine and Philadelphia Magazine. Stephen G. Console and Laura C. Mattiacci are once again included on the Super Lawyers list along with Caren N. Gurmankin and Rahul Munshi included on the Rising Stars list again as well.
Trial Pros: Pepper Hamilton’s Joseph Crawford
Law360, New York (June 13, 2016, 2:16 PM ET) —
Joseph C. Crawford is a partner in the commercial litigation practice group of Pepper Hamilton LLP and a fellow of the American College of Trial Lawyers. He has tried cases in many areas of the law, including breach of contract, fraud, securities, product liability, defamation, insurance, cases arising out of mergers and acquisitions, death penalty litigation and other pro bono cases.
Q: What’s the most interesting trial you’ve worked on and why?
A: The most interesting trial I ever worked on is one that changed my approach on how to prepare clients to testify in depositions and for trial. The opposing party, my client’s older relative, was a wealthy man who had hired my client to run the family business and had given my client a power of attorney to sign checks and enter into business transactions. The older family member accused my client of making unauthorized payments to himself and entering into business transactions without authorization and on terms that constituted a breach of fiduciary duty.
As is typical in a family business dispute, some of the documents put my client in an unfavorable light and the older relative never challenged any payment or transaction in which there was a clear documentary record that favored my client. Although my client was an honest, extremely intelligent person and I had used the “normal deposition preparation” that I had used with all other clients up to that point in the first ten years of my career, he lacked confidence under cross-examination and his deposition did not go well. I decided that, if opposing counsel did not call my client as on cross-examination during trial, I would, in the course of my own direct examination in the defense case, ask him every difficult question and cover every weak point that a good cross-examiner would probe.
That is exactly what occurred. I called it “Take Away Direct Examination,” because the goal was to take away any possibility of opposing counsel cross-examining my client. The result was that my client felt confident telling the whole story — the good points and the difficult points — during direct examination. When I questioned him very specifically about some of the difficult points, he knew that I believed him on the ultimate issues in the case, and it increased his ability to explain difficult facts tremendously.
This method thwarted opposing counsel’s cross-examination because the client had already answered all of the challenging questions, and so the cross-examination seemed like mere repetition of points that had already been answered. I realized then how much more effective it is to address and answer the “weak points” in a case during direct examination of the client because then the “weak points” can be placed in the context of a theory of the case in which they are not fatal to the client’s position.
The jury clearly appreciated the honesty of an approach that presented the whole story — our good points and our bad points. In what was a difficult case, the jury saw that the client was fundamentally telling the truth and awarded the plaintiff only one percent of the damages that he claimed, and even that verdict was reduced to zero because the plaintiff had withheld a payment that would otherwise have been owed to my client based on the claims of fraud and conversion. Now I always consider the possibility of taking away my opponent’s cross-examination by addressing every likely attack point in my direct examination. After this trial, I changed my method of preparing witnesses.
When I prepare a witness for deposition or trial, after we have covered all of the key facts and documents, I conduct a “Take Away Direct Examination,” which is an attempt to elicit testimony on the main strong points of our theory of the case and on all of the major subjects and questions that a good opposing counsel might probe in cross-examination. The goal is to make the client see that our theory of the case withstands the test upon examination of all of the relevant facts — both the good and the bad. Only then do we proceed to a mock “cross-examination,” in which I or a colleague plays the role of opposing counsel and asks the difficult, challenging questions. This method — i.e., making sure that the client would be able to testify on the main strong and weak points in a “direct examination” conducted by their own lawyer — is a tremendously effective tool in preparing clients to testify in response to questions by opposing counsel.
Q: What’s the most unexpected or amusing thing you’ve experienced while working on a trial?
A: Sometimes, it is better to be lucky than good. I tried a defamation case years ago that involved a dispute between a male political activist and my client, a woman who was a television news broadcaster at one of our local stations. The political activist’s version of the event that resulted in the defamation case was that he had a respectful conversation with my client in which he criticized her journalistic ethics. He claimed that she lost her temper and struck him in the face.
My client testified that the political activist, a person she had never met before, startled her by making angry, deeply offensive comments that had nothing to do with journalism. She admitted that she tried to slap him across the face, but denied striking him. The political activist filed a defamation case because a local radio talk show host found the incident amusing, discussed it on the air repeatedly and recounted the incident primarily from the point of view of the television news broadcaster.
During all of my planned cross-examination of the political activist, he was calm, respectful and conducted himself like a perfect gentleman. I had a terrible case of the flu during the trial and perhaps because I was feeling so sick, I asked a stupid, objectionable and ineffective question at the end of my cross-examination. The question was so bad and should have been so easy to answer that my opponent decided not to object to it. Then pure, unadulterated good luck intervened.
The political activist unexpectedly screamed at me, and then he made a huge mistake by standing up in the witness box, putting his hands on the bench and leaning over and screaming in the face of the trial judge, angrily criticizing her handling of the trial. The trial judge had conducted the jury trial in an exemplary manner, and the jury clearly loved her. When the jury saw the political activist screaming in the face of the trial judge, the case was over.
Q: What does your trial prep routine consist of?
A: It is pretty much a three step process for me. First, I personally prepare detailed summaries of all the deposition testimony by opposing witnesses and all potentially important exhibits. I make sure that I include in my summary the exact words of the witness or the exhibit if I believe there is any chance that I will use that excerpt either to control the witness’s answer during trial or to impeach the witness if he or she varies from the statement in the deposition or exhibit.
I find that personally preparing these summaries burns their content into my memory. Second, I develop explicit goals, lists of exhibits and outlines for each cross and direct examination. I improve the direct examination outlines by meeting with our witnesses and preparing them to testify on direct, “Take Away Direct” and cross-examination. If my goals are sound and the methods chosen in the outlines are good, I will not need to use the outlines much during the examination of the witnesses because I will remember the goals and the methods chosen to accomplish them. Finally, I prepare an opening statement and perhaps also a rough outline of my closing statement.
Q: If you could give just one piece of advice to a lawyer on the eve of their first trial, what would it be?
A: If a new trial lawyer is extremely well prepared on the facts and has good fundamentals, his or her youth or inexperience can actually be a tremendous advantage. If the judge or the jury senses that the new trial lawyer does not have a great deal of experience, but is extremely well prepared, sincere and, importantly, is someone who gets to the point without wasting everyone’s time, there will be a natural human reaction on the part of the judge and the jury to root for and give every benefit of the doubt to the first timer.
Q: Name a trial attorney, outside your own firm, who has impressed you and tell us why.
A: Stephen G. Console of Philadelphia has a well-deserved reputation as one of the most outstanding plaintiffs’ employment law attorneys in the United States. His trial skills are truly outstanding, but the most remarkable things about him are his professionalism in dealing with the clients and his ability to evaluate cases quickly and accurately. I invariably learn a lesson in professionalism when I have the opportunity to send a client to him and his colleagues. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates.
This article is for general information purposes and is not intended to be and should not be taken as legal advice.
All Content © 2003-2016, Portfolio Media, Inc.
Read the full article Trial Pros Pepper Hamilton’s Joseph Crawford in PDF format.
Congratulations to the following attorneys of CLO for their inclusion on the 2016 Pennsylvania Super Lawyers and Rising Stars (the state’s young attorneys) lists. The Philadelphia Magazine and Philadelphia Super Lawyers Magazine publication is expected on newsstands on June 1st.
Steve Console, partner of Console Mattiacci Law, is again included on the Pennsylvania Super Lawyers list for 2016, as well as the TOP 100 for Pennsylvania and TOP 100 for Philadelphia. He has been honored by Pennsylvania Super Lawyers since 2004. He will receive special recognition for being on the Super Lawyers list for more than 10 years!
Laura Mattiacci, partner of Console Mattiacci Law, is again included on the Pennsylvania Super Lawyers list for 2016. She has received this honor each year since 2003. She has also been recognized as TOP 50 Female Lawyers for Pennsylvania for 2016.
Caren Gurmankin and Rahul Munshi have been recognized as Pennsylvania Rising Stars by Philadelphia Magazine and Philadelphia Super Lawyers Magazine. This designation places Attorney Gurmankin and Attorney Munshi in the top 2.5% of up-and-coming attorneys in Pennsylvania.
Join us in congratulating these dedicated and skilled attorneys. Way to Go!
After a one-week jury trial in Reading, Pennsylvania, a juror in an age discrimination case our firm brought against AT&T said this, on the record:
I just think both lawyers on both sides did an outstanding job along with their assistants, and I’m just really impressed with the jurors that I worked with, some of them are younger, some middle-aged, everybody did a great job, and I’m proud to be an American right now.
Two weeks later, an African American female suing her former employer for race and sex discrimination in Philadelphia said this about the federal magistrate judge (white) during a lengthy settlement conference: “Coolest judge ever.” And that was before the case settled. The courtroom where the parties convened was in Philadelphia, a short walk from Independence Hall.
Both of these events got me thinking about mandatory arbitration and how it is taking away from individuals (jurors and litigants) the ability to experience our country’s amazing system of civil justice, built on the Seventh Amendment right to a jury trial. In an age where trust in our government and institutions is apparently declining, there may not be a better way to restore confidence than experiencing, first hand, the jury trial system.
Compare the compulsory arbitration system that companies are forcing on employees with the jury system. In arbitration, the individual plaintiff learns that she no longer has a right to a jury trial (yes, the Supreme Court seems far less concerned with upholding the Seventh Amendment than it does the Second Amendment). Why, she asks her lawyer? Because you signed a piece of paper that you were told to sign by your company. But, she pleads, I HAD to sign that or lose my job, and I have a family to support. True, says the lawyer, but it doesn’t matter because basically the major corporations of the U.S. and the Chamber of Commerce got the Supreme Court to rule that they can block you from a jury trial because, well, they were losing jury trials.
Wow, she says, I guess that figures since money controls everything. She then asks, who will decide my case if not a judge and jury? The lawyer responds: a lawyer who is in the business of handling these arbitrations and whose likelihood to be chosen as an arbitrator or a mediator depends to a significant extent on whether companies (the repeat clients of the employment law arbitration/mediation process) want the lawyer to be the arbitrator or mediator. But that isn’t fair, she says—it seems rigged against the individual employee. Well, concedes the lawyer, it is not fair, and you are right—but it is the playing field we have been forced to play on. The client in arbitration will never see a judge and never see a jury. The arbitration will play out (literally) behind closed doors and the client will tell her children, family, friends, and coworkers that the civil justice system of our country might as well be called Civil Justice, Inc.
Let’s compare that arbitration experience with the experience of the juror and client referenced at the outset of this article. For them, the trial experience was patriotic and enlightening. Yes, America does have the most amazing judicial system in the world. Yes, judges are smart, funny, compassionate, and, most of all, fair and beyond the influence of money. These jurors and litigants go home and tell their family, friends, and co-workers about the uplifting experience that they had—in a government institution no less (yes, tax dollars at work).
I grew up in a three-generation home in Philadelphia were my grandparents and parents served as jurors. Perry Mason was on a black and white TV—speaking to jurors. Henry Fonda was one of twelve Angry Men—but, man, was he persuasive when he flipped that jury. To Kill a Mockingbird inspired. Being a lawyer was being a person who could speak with jurors—you didn’t need to be growing up with rich people to be a good lawyer because the ultimate decision was made by working class people that you understood. The system was class-blind and beyond the influence of money. It made me want to become a lawyer and made me feel proud to be a lawyer, even when the jurors found against my client.
Mandatory arbitration is taking that pride, passion, and patriotism away from people. It is depriving citizens of seeing first hand our amazing system of civil justice. The writers of our Constitution, sitting here in Philadelphia, might have known a thing or two about the importance of a jury system in helping people have confidence in this country’s enlightened system of justice. A jury trial might be the best civics lesson any American can have.
Attorney Laura Mattiacci of Console Mattiacci Law, LLC represented Jack Gerundo in his age discrimination suit against AT&T. Gerundo was a customer service representative with AT&T and its predecessor, IBM, for almost 43 years when a supervisor informed him that his position was being “surplused”. Soon after his termination, he said he was asked to train his successor, an employee 29 years his junior.
Gerundo filed an age discrimination lawsuit against AT&T and a federal jury in Reading awarded him $370,000 ($288,000 for back pay and $82,000 for front pay in January). Last month, ATT&T asked the judge to scrap the verdict and could appeal to the 3rd Circuit Court of Appeals.
PHILADELPHIA — A former Temple University employee is suing the school, alleging wrongful termination, discrimination and retaliation.
Ruth V. Briggs of Philadelphia filed lawsuit Jan. 20 in U.S. District Court for the Eastern District of Pennsylvania against Temple University, alleging violations of the Age Discrimination in Employment Act (ADEA), the Pennsylvania Human Relations Act (PHRA), and Title VII of the Civil Rights Act of 1964.
According to the complaint, Briggs began working at Temple in February 2001 as an editorial assistant in the Center for Neuro/Cancer Biology. In October 2009, she became executive assistant to the chair of the Department of Computer Information Sciences, until she was terminated April 1, 2014, the suit says.
The lawsuit states Briggs’ superior at Temple began discriminating against her regarding her age and sex beginning in November 2011. The plaintiff alleges several instances of harassment over the next couple years, for which she attempted to get help, but says no one was able to alleviate the situation.
On the date of her termination, the suit says, Briggs was going to meet with one of Temple’s employees to discuss the situation but was given notice of her termination instead. The plaintiff alleges discrimination and retaliation were the primary causes of her being let go.
Briggs seeks compensatory damages for all lost earnings, earning capacity and benefits, past and future, liquidated damages, punitive damages, cost of suit, expert fees and attorney fees. She is represented by attorney Rahul Munshi of Console Mattiacci Law, LLC LLC in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania Case number 2:16-cv-00248-RK
In a victory against a corporation seeking to compel arbitration in an employment discrimination matter, Judge J. Curtis Joyner of the U.S. District Court for the Eastern District of Pennsylvania denied defendant Fiserv, Inc.’s motion to compel arbitration. The case involves claims of employment discrimination based upon age, disability, and national origin, as well as claims of retaliation in violation of the Family Medical Leave Act.
The plaintiff, Kim Shank, a 57-year-old American, worked at Fiserv for over six years before being terminated the day after she returned to work from a medical leave of absence. Ms. Shank’s termination also came after Fiserv hired a series of younger, non-American workers.
Fiserv’s motion to compel arbitration was based upon an arbitration agreement that was signed by Ms. Shank, but not by Fiserv, despite the existence of signature lines for representatives of Fiserv. Judge Joyner concluded that Fiserv’s failure to sign its signature lines, coupled with language in the agreement suggesting that signatures from both parties were required to consummate the agreement, rendered the agreement invalid. Fiserv’s motion was denied on January 14, 2016. Ms. Shank is represented by Kevin Console of Console Mattiacci Law, LLC LLC.
About Console Mattiacci Law, LLC, LLC
Console Mattiacci Law, LLC LLC is an employment rights law firm with offices in Philadelphia, Pennsylvania and Moorestown, New Jersey. Since its inception in 1990, the firm has focused its practice on the representation of current, former and potential employees concerning work-related matters. The lawyers at Console Mattiacci Law, LLC LLC counsel whistleblower-employees who have been retaliated against and individuals who have been victimized by illegal employment discrimination and retaliation, including sex, race, religion and age discrimination and sexual harassment at work. They also represent employees concerning medical leaves, disability benefits, wage and hour claims, employment contracts, severance agreements, stock option plans, and class action lawsuits. For more information visit: www.consolelaw.com or call Console Mattiacci Law, LLC LLC at 215-545-7676.