Here’s something that happens far too often:
An employee testifies about something an employer did to her (i.e. sexually harassed her or uttered a racial slur while firing her). The employee testifies in detail about what happened. Then the opposing attorney asks in his most skeptical voice, “do you have any evidence that anything you just testified about actually happened?”
I wince. I can see what’s going through the employee’s mind: “Nobody else saw what the employer did to me. I didn’t make a recording of it. There are no documents that show what the employer did or said.” Then the employee walks right into the trap: “No, I don’t have any evidence of this.”
One way of avoiding this situation is when a victim of workplace discrimination discusses their situation with a discrimination lawyer in Atlanta GA who is licensed to give you counsel on your particular case.
I want to scream, “YES, YOU DO! Your testimony is evidence! By saying you have no evidence, you made your case look bad with an admission that isn’t true!”
Most non-lawyers mistakenly believe that “evidence” consists of something concrete: a recording, a document, DNA, a smoking gun, etc. And, yes, all those things can be evidence. But, in the law, the most common form of evidence is testimony. And your testimony, as the injured employee, is vitally important.
One reason your testimony is important is because it can help you get to trial in the first place. Rather than face a trial, your employer will move for summary judgment, meaning it asks the court to dismiss your case before it even gets to a jury. But employers are only entitled to summary judgment IF there is no “genuine dispute of material fact.” In English, that means they can only get your case dismissed if there is no evidence on your side re: some important part of your case. Your testimony – perhaps via a deposition or an affidavit – counts as evidence under such circumstances! If it comes down to “he said, she said” on the key disputes in the case, then the judge can’t dismiss your case and must let the jury decide.
The 11th Circuit Court of Appeals – the federal appeals court that covers Alabama, Florida and Georgia – recently reaffirmed this point in United States v. Stein, No. 16-10914 (11th Cir. Jan. 31, 2018). In Stein, the Court ruled that someone’s affidavit “even if it is self-serving and uncorroborated” can create a “genuine dispute of material fact” and prevent summary judgment.
This isn’t to say you can always win at trial based on your testimony alone. Once the case gets to trial, the jury decides whose testimony they believe. In such circumstances, it always helps to have other evidence – recordings, emails, testimony of coworkers or family members, etc. – to back you up and make your testimony more credible. It’s your lawyer’s job, with your help, to find such evidence and to help you present your testimony in a clear and compelling way.
But my point is: never admit you have “no evidence” if you personally observed the thing you’re testifying about. Your testimony is evidence!
Thanks to our friends and contributors from Barrett & Farahany – Justice at Work for their insight into finding an attorney.