Cast of characters, chronology, and case theories
The lawyer’s planning
The attorneys for both sides in an employer-employee dispute will want to develop a “cast of characters,” a chronology of events, and some case theories.
The plaintiff’s employment lawyer may have the plaintiff create the “cast of characters” and the chronology either as part of the initial case evaluation or shortly thereafter as part of the preparation of a discovery plan.
The defense lawyer for the employer will probably begin to develop these documents immediately upon receipt of the complaint.
The “cast of characters”
A “cast of characters” is a document that:
- generally identifies all of the individuals involved in the plaintiff’s case (e.g., the defendants, witnesses, etc.).
- includes contact information, such as work and home address, telephone numbers, facsimile transmission numbers, cellular numbers, and e-mail addresses.
- provides comprehensive background information.
The employee should be over-inclusive about the information provided about each “character.” For example, the “cast of characters” should include any and all derogatory information about each of the “characters,” so that the attorney can determine whether there are useful facts that can be leveraged against the defendants. This document should also indicate whether the “character” is likely to be a friend (someone who is willing to cooperate and/or provide helpful testimony), a foe (someone unwilling to cooperate and/or will provide negative testimony), or whether the “character’s” allegiance is unknown.
A chronology is a document that:
- briefly outlines the plaintiff’s career with the employer (e.g., hire date, promotions, raises, performance evaluation ratings, bonuses, any criticisms of performance, etc.).
- exhaustively details the events giving rise to the plaintiff’s potential claims (e.g., in harassment case, each act of harassment; in discrimination and retaliation, each act of discrimination and/or retaliation).
- provides any other information about which the plaintiff believes the attorney should be aware.
The legal meanings of “harassment,” “discrimination,” and “retaliation” may encompass a broad array of actions that a layperson might not otherwise think of as being covered by those terms. Therefore it may be helpful for the employee to include all negative acts (no matter how trivial) in the chronology and let the attorney decide what is appropriate.
The theory of the case
Once the “cast of characters” and the chronology have been created, the plaintiff’s employment lawyer can develop a list of the legal theories of liability and potential defenses that may be raised in the case.
This may include theories of liability beyond the legal theories which the plaintiff is considering. For example, it may turn out that a plaintiff with weak allegations of sexual harassment may have an excellent defamation case. Similarly, a plaintiff’s poor failure-to-accommodate case could be a powerful wage and hour claim. Among other potential claims are federal statutory claims (e.g., Title VII, ADA, ADEA, FMLA, etc.), and state statutory and common law claims (e.g., assault and battery, fraud and deceit, defamation, false imprisonment, negligent and intentional infliction of emotional distress, breach of contract, etc.).