David DeRubertis

David DeRubertis

Following his record-setting $464.5 million dollars employment retaliation jury verdict in June 2022 ($422.5 million for one plaintiff and $42.2 million for the other), David deRubertis continued his string of outlier, record-setting employment jury verdicts in 2023 with a $41.5 million whistleblower retaliation verdict against Kaiser in December 2023 preceded by a $20 million failure to accommodate verdict against Marriott in September 2023. The Kaiser verdict was the largest employment jury verdict in the country in 2023 and the Marriott verdict was a record-setting verdict for the venue it was tried in. These two cases were very different: a failure to provide a proper ergonomic workstation for a disabled concierge versus a patient safety retaliation case on behalf of a nurse. But the methods and techniques that deRubertis has honed and fine tuned for years continued to produce these outlier results. At this year’s session, deRubertis will illustrate his methods and techniques to preparing and trying employment cases through a two-day session that highlights how these methods and techniques were used in the Kaiser and Marriott cases. This will not be a rehash of last year’s session but rather will build upon it and illustrate refined techniques so that those who attended last year or new attendees will both benefit from this session.

A core purpose of this session is to show and teach how to win challenging employment cases by telling a story that focuses the jury on the core strengths of the case (usually, the defendant employer’s bad conduct and corporate culture) while accounting for, and dealing with, the obstacles and landmines. The session will cover deRubertis’ general approaches and methods to trying employment cases illustrated through the specific analysis of the Kaiser and Marriott trials.

Limited to 10 attendees, the session is intended to be interactive with frequent opportunities for questions and interactive feedback and discussion.

Attendees will learn topics, methods and techniques such as:

• How to employment cases lend themselves to telling a traditional story-based narrative focusing on the employer’s bad conduct: deRubertis will discuss traditional story-based narratives and how humans are hard-wired to receive information that fits into this structure. The key elements of a traditional story-based narrative will be reviewed. And then he will demonstrate how employment cases naturally lend themselves to this type of story structure, and how to tell such a story with the focus being on the defendant employer’s bad acts and corporate culture rather than the plaintiff. This will be illustrated by both the Kaiser and Marriott trials.
• Principles of trial, persuasion and jury dynamics in employment trials: deRubertis will discuss what he has learned in nearly twenty-five years of employment trial work regarding the general principles of trial, persuasion and jury dynamics, and how these general dynamics play out specifically in employment trials. Understanding these dynamics gives the plaintiff employment trial lawyer a huge advantage, and he will illustrate how through the examples of the Kaiser and Marriott trials.
• Framing, structuring, sequencing, simplifying, theory and themes: deRubertis believes that framing the employment case, structuring and sequencing the evidence, simplifying and having trial themes that fit the framing is one of the most important parts of trying employment cases. This seminar will include a review of deRubertis’ current methods focusing on simplifying the case. In the Kaiser case, deRubertis was retained just week before trial and simplified the case by dropping 10 causes of action and abandoning multiple pled legal theories and surgically focusing on the most viable, persuasive theory. In the Marriott case, the facts involved a 5 year ordeal of interactive process. But deRubertis focused primarily on the key “kill shot” of the last 9 months. This portion will include teaching of deRubertis’ specific methods that he uses to isolate and identify the “kill shots” in the case – i.e., those parts of the story where the defendant did wrong or which the defendant cannot credibly justify – and how to then structure the story around these “kill shots” while still accounting for, and including as an affirmative part of the story, as many of the case’s obstacles, landmines and warts as possible.
• Tailoring your opening statement for the specific case and specific goals of that case: Contrary to some traditional beliefs, deRubertis does not believe that all cases are won in opening statement or 80% of jurors decide the case in opening statement. Thus, deRubertis will discuss the different approaches to opening statements depending on the facts of the case. Sometimes, he believes and will explain, his goal is not to win the case in opening but rather to lay the groundwork for the jury to move to the plaintiff’s corner through the initial adverse witness examinations. Other times, he does believe the opening statement should get the jurors in the plaintiff’s corner before the evidence begins. In this session, he will explain the differences in these two scenarios and discuss which approach is used when as well as his general approach to opening statement through use of the Kaiser and Marriott cases.
• Sequencing of witnesses: The case-in-chief: This session will build upon the framing and structuring discussion to illustrate how to make the case-in-chief match the frame and structure of the case through sequencing witness order as separate “acts” of the story. This will include a deep discussion of deRubertis’ approach to witness order in employment trials illustrating again through the Marriott and Kaiser trials. Attendees will see how the case-in-chief is sequenced to build to the conclusion that the defendant is liable through an incremental process of one witness building steps in the foundation of the argument that the defendant did wrong and is liable. In his earlier days in trying these cases, deRubertis tried to deliver the “knock out punch” in the initial witness or two. He now often does something very different incrementally building to the “knock out punch” through a series of witnesses. He will explain how and why, and illustrate how this was successfully achieved in both the Marriott and Kaiser trials.
• Story telling through examination of adverse witnesses: In both the Marriott and Kaiser trials, the case was proven through the mouths of defense witnesses will before the plaintiff testified. deRubertis will demonstrate how to do this with examples of transcripts of his adverse witness examinations in both trials. For example, in the Marriott case (focused on an ergonomically improper workstation), deRubertis will show how he converted Marriott’s occupational health nurse as the first witness in the trial to plaintiff’s own expert witness leading to an admission in the first day of testimony that the workstation Marriott supplied the disabled plaintiff should never have been used given his limitations and restrictions. This portion will include the topic of handling the adverse case-in-chief examinations of both human resource and management witnesses to convey the plaintiff’s own themes and theories to the jury. It will also include a discussion of the mechanics of preparation for these adverse examinations focusing on how to use the “controls” (either documents or deposition admissions) to structure an examination outline to ensure that either the adverse witness tells the plaintiff’s story of the case or, alternatively, loses credibility if they refuse to do so and admit the reality of that story.
• Big non-economic damages: Outside-the-box approaches to damages and obtaining big damages: A theme throughout this session will be how to leverage big damages (both non-economic and punitive) in your employment trials. In the Marriott case, the defense said there were no damages. The plaintiff quit in September 2019. By March 2020, two things happened causing the plaintiff to waive economic damages including wage loss: (1) COVID resulted in layoffs of all the concierges in the department and none were hired back; and (2) the plaintiff’s preexisting congestive heart failure deteriorated to the point that he could no longer work. Undeterred, deRubertis pressed forward and tried a case that included arguing that his client’s underlying congestive heart failure was made worse, and its downward spiral accelerated, because of the defendant’s mistreatment of him. The end result was a record-setting non-economic verdict for the venue. This session will teach generally how to embrace the “mind/body connection” to prove that so-called emotional injury can impact the plaintiff wholistically both mentally and physically. In the Kaiser case, Kaiser argued the damages were low pointing to the undisputed fact that the plaintiff, a nurse, not only did not treatment psychologically after her termination but had the opportunity to do but declined treatment. They also pointed to her very minimal job search efforts over a nearly five year period, coupled with the fact that her job search coincided with the pandemic which saw health care employers searching for qualified nurses to employ. Despite these facts, the jury returned a compensatory damage award of nearly $12.5 million with $9 million in non-economic damages. deRubertis will teach his time-proven techniques for achieving large non-economic damages verdicts in employment trials illustrating through these two very different examples. This will include a detailed discussion of handling forensic psychologist/psychiatrist testimony – both your own and the defense’s.
• Embracing and incorporating the bad facts rather than losing credibility disputing them: Winnable employment cases are sometimes lost because the plaintiff unnecessarily loses credibility unnecessarily. deRubertis will discuss how to ensure that you “first do no harm” when it comes to your client’s credibility. Often, the credibility problem arises from disputing that which should be admitted and contextualized rather than disputed outright. The best way to do this is to incorporate those bad facts directly into the story narrative putting them into their proper context. deRubertis will illustrate this with examples from both the Marriott and Kaiser cases. In the Marriott case, for example, the jury heard that the plaintiff was disabled following his resignation by a preexisting heart condition, had filed two other lawsuits one of which arguably sought to recover for similar harm to that in the employment case, and had a history of years of alcohol and cocaine abuse as well as taking androgen injections against some medical advice.
• Closing argument and before: Elevating the case through illustrating its societal importance: deRubertis will discuss throughout the sessions the concept of elevating the case to ensure the jury sees the value in a large plaintiff-vindicating verdict. This will include how to discover the key issues in the case that are likely to motivate the jury to return a large verdict. And it will include a discussion and example of closing arguments segments that achieve this result. Part of this will include the specific structure deRubertis usually uses in closing argument with an explanation of how and why it is tailored to elevate the case and show the jury why a plaintiff-vindicating verdict is the right result.
• Pitfalls and tactics for the punitive damage phase: The final segment will address both nuts and bolts of a punitive damage phase (including: securing financial condition evidence; whether to offer any witness testimony; etc.) and then a demo of a portion of the phase-two closing argument in the Edison trial.

Testimonials:

"The workshop was case specific, in this instance for the Edison case, and provided insight on the challenges David faced and strategies developed to overcome them. The time spent in David's workshop was well spent not just for the lecture but the opportunity for group discussion and feedback. The whole program was also a great way to see colleagues and meet new ones."

-Michael Chang, Soco Law Firm