When do I Subpoena A Witness?

Determining when to subpoena witnessness can be tricky.  Be sure to discuss with your attorney the pros and cons of calling someone to be witness on your behalf.  If the person still works for the company that you are suing, it is best to serve them with a subpoena .  Even if you consider a witness who is still employed with the company a friendly witness it is still  even better to subpoena the person.  When a person is subpeonaed by the court, they have a legal responsibility to give testimony.  If the person is your friend, a subpeona gives them a legal argument to give information that can be damaging to the company.  Again, take the participation of anyone may be called as a witness very seriously.  A witness can do one of three things....help your case, hurt your case, or be irrelevant to the facts of your case.

My Attorney Nightmare!

My story began in January 2007, when I retained the services of G. Ware Cornell, for an employment law matter involving my former employer, its management, a sister-company and some of its employees, for discrimination, retaliation and wrongful termination.  Mr. Cornell advertises himself as being a Civil Rights, Employment Law and Malpractice Attorney with 30 plus years of experience.  From the onset, I provided Mr. Cornell with a summary of events complete with supporting exhibits, as well as, journals and diaries that detailed the events and identified the parties involved.  He would later convert my summary into the legal brief for my lawsuits.

       In April 2007, I requested that Mr. Cornell add all of the responsible parties in the initial lawsuit in federal court in the Southern District of Florida.  He responded to me via email that for legal reasons I could only sue my employer in this type of litigation.  Mr. Cornell refused to honor my request to add any responsible members of management or the sister-company involved and its employees in the initial lawsuit.  Almost four years later, I would discover from a Florida state court judge, opposing counsel, and other attorneys that the information Mr. Cornell provided was not true.  In fact, the law states just the opposite. There should have been only one lawsuit.  In the end, to cover-up his actions intentional or not, he changed his story by saying, had we sued everyone in the initial lawsuit it would have been a disaster and we would have lost the case.  Also as a defense, he stated that legal strategy is left to the attorney and often time is not discussed with the client.  

       In February 2008, approximately ten months after the initial lawsuit was filed, Mr. Cornell determined that we should sue the sister-company and several of its employees but in a separate lawsuit in federal court in the Middle District of Florida.  He filed the second lawsuit under a statute that according to both the lower court and federal circuit court of appeals only guaranteed me the right to be free from involuntary servitude (slavery).  His legal strategy would prove a disaster and total waste of time and money for me, his client.  After filing two lawsuits in federal court, he filed a third lawsuit in Florida State Court in July 2009.  Counsel for the opposing parties answered the complaint by asserting Collateral Estoppel, Defensive Collateral Estoppel and the Common Nucleus-of-Operative Facts Doctrine.  These are fundamental laws governing litigation that make it impossible to sue additional responsible parties outside of the initial lawsuit.  In other words, "you get only one bite at the apple" for damages and utilizing the same set of facts.  The plaintiff has one shot to bring his claims and if he does not, he is barred from bringing them again.  "The Common Nucleus-of-Operative Fact Test is a legal doctrine which says that a federal court will have jurisdiction over state law claims.  A federal court can exercise its jurisdiction over those state law claims that arise from the same facts as the federal claims.  The common nucleus of operative fact test was first adopted in the United Mine Workers v. Gibbs, 383 U.S. 715 (U.S. 1966).  It also codified at USCS statute 1367."  For whatever reason, Mr. Cornell chose to ignore these basic principles of the law for four years.  He presented the same nucleus of operative facts and requested the exact same damages in each of the three lawsuits.  I questioned Mr. Cornell via email about the merits of opposing counsel's arguments (answers) asserting Collateral Estoppel, Defensive Collateral Estoppel and the Common Nucleus-of Operative Facts Doctrine as their defense.  He responded that in his opinion their arguments had no merit.  

       Mr. Cornell charged me a duplicate retainer fee and unnecessary court cost and other legal expenses related to the subsequent meaningless lawsuits.  He traveled to several states to conduct depositions on some of the same defendants in the initial lawsuit.  There were four mediations and numerous court hearings related to the subsequent lawsuits.  All of these redundant actions/expenses were futile and proved an enormous expense for me, the client.

       In July 2008, I prevailed in the first lawsuit for retaliation and wrongful termination.  But because Mr. Cornell had refused to add management, the sister-company and its employees I was prevented from receiving full damages and denied the claim for discrimination.  An award for punitive damages could not be granted because the jury instructions stated the company could not be held liable for the actions of its employees.  The jury found that management had acted with malice and reckless indifference toward my federally protected rights.  But Mr. Cornell had refused to add management in the lawsuit.  After winning the case there was a separate hearing on front-pay.  Mr. Cornell presented erroneous information to the judge stating that I would immediately secure employment with an annual compensation package of $72,437.04 in the midst of the worst recession since the 1920s.  I was unemployed at the time.  He submitted proposed findings indicating the fictitious annual compensation amount of $72,437.04 and that that amount should be subtracted from my documented annual compensation of $126,709.00 to calculate the front-pay award.  The court adhered to his erroneous findings and adjusted my yearly front-pay compensation downward from $126,709.00 to $54,271.96 per year.  An expert witness should have been called to testify about my front-pay and not Mr. Cornell.  He also failed to submit supporting documentation about the length of time I could have remained employed by my former employer (10-15 years) so the judge awarded me front-pay for only a few years at the reduced amount.  Two days before the trial Mr. Cornell guaranteed me that the judge would award 10 years front-pay based upon his false assertions.  The court also awarded only half of my back-pay (a hung jury) and nothing for emotional distress and mental anguish.  All of my damages were deemed adjudicated in the initial lawsuit.

       My former employer appealed the judgment in the initial lawsuit dragging the case out for almost another year.  Then they proposed a settlement that I later rejected.  I informed Mr. Cornell that I would rather see the appeals process through and refused to discuss the matter any further.  Then I received an email from him persuading me to settle the case.  He stated in the email that we would do well in the subsequent lawsuit and that he'd asked the mediator to request a settlement amount of $8,000,000.00. Afterwards, I received an email from his wife pleading with me to call him to get things sorted out.  He had health issues and they would be pleased for me to stay with them to help him with the remaining lawsuits.  Reluctantly, I agreed to settle the case based upon Mr. Cornell's advice for less than the judgment not realizing that legally I could not recover another "red cent."

       For the next two years Mr. Cornell would continue to mislead me with inaccurate information until the remaining two lawsuits played out unfavorably and I was depleted of funds.  He then urged me to appeal the final lawsuit because I was now liable for the opposing parties court cost and possibly attorney fees in addition to the tens of thousands of dollars I had spent.  I began to question Mr. Cornell via email about the inaccurate information that he provided to me concerning all three lawsuits over a four year period.  At that point, he accused me of calling him a liar, incompetent and dishonest.  He threatened to withdraw from the appeals case unless I provided a sincere apology and sign a new fee agreement to pay him for writing the appeal (under the original agreement the appeal was at no cost to me) and to pay him cost on an hourly basis.  It became very clear at this point that the explanations Mr. Cornell provided about the federal court in the Middle District of Florida for being lazy and not adequately digging into the claim concerning the second lawsuit; and the state court judge in Tampa being being incorrect in his ruling based upon collateral estoppel and defensive collateral estoppel in the third lawsuit were incorrect.  Mr. Cornell withdrew from the appeals case and left me in a financial and legal mess.

Please be aware that an attorney can provide you with false information about the law and legal proceedings and get off the hook by saying, "it was his or her professional judgment."

Lessons Learned:

1.  Stray away from using attorney rating services.

2.  Talk with others who have used the services of an employment attorney.

3.  Rely on your gut instincts when things just do not appear accurate

4.  Do your homework up front.  It will spare cost and heart ache in the end.

5.  Speak with past clients of the attorney that you are considering if at all possible.  

Temporal Proximity

It is extremely important to file complaints for each and every incident of discrimination or retaliation by your employer with the EEOC. The primary source of protection for the employer in discrimination and retaliation cases is "Temporal Proximity." Please research how "Temporal Proximity" is employed as a legal defense if you plan to sue your employer for discrimination and/or retaliation.

Always Keep Paper Copies of Your Reviews

You would be surprised at the number of times that companies state that they cannot retrieve an employee past reviews.  Always keep paper copies of your final annual  review.  They are very important in establishing past performance trends.  They can be a key element in your lawsuit.  Do not rely on a company to produce reviews because doing so may not be in the companies best interest to do so.  It would be difficult to prove that copies of your reviews still exist in a company's files.  In fact, any document that shows consistent performance, exceptional performance or company awards should be retained by you in a form that is easy to retrieve if necessary.  Compensation documents are also important.  Some companies provide employees with documents outlining their complete compensation package.  These documents are key instruments used to determine back and forward pay. They take out all of the guess work in computing total compensation. Always keep copies of important employment documents.  It will certainly save a lot of time and effort in the future.

Choosing Your Witnesses



Choosing your witnesses is very important

 Choosing a witness can be very tricky. Don't just choose someone because they are a good friend. Choose the person who knows the most about your situation and thinks favorably about you.  Talk with the person before they appear to get a feel for what they will say.  In no way coach your witness as to what to say during a hearing or a deposition. This will only render a potentially great witness null and void.  You will be asked if you or your attorney prepared your witness in any way to give testimony.  Be sure that the answer will no to this question.  You and your attorney should be in agreement about who is to give testimony.  Don't just leave this decision to your attorney.  You have better knowledge of the parties involved and can perhaps help your attorney better understand the value of a person that you want to depose or have give testimony.