Game of Thrones: Trial by combat

Winter is coming, but not soon enough for those of us eager for Season 6 of Game of Thrones.  While we wait, I’d like to rewind to one of my favorite episodes from Season 4 involving Tyrion’s trial for the murder of his nephew. As you may recall, Tyrion’s long-time rivalry with his sister, Cersei, comes to a head when she falsely accuses him of murdering her son. Watching the ensuing trial should make us all thankful that we do not live in Westeros. Tyrion stands alone, with no legal counsel, facing a panel of judges who can hardly be considered fair or unbiased. Indeed, Tyrion’s father seems the most eager to see him dead. After enduring one misleading and/or outright lying witness after another, without the opportunities for cross-examination or to present any evidence whatsoever, Tyrion realizes he will get no justice in that trial. His solution: Demand trial by combat.

Thankfully, our own court system is much more concerned about such things as fairness and justice, so employers aren’t forced to resort to trial by combat in employment litigation. For example, our system permits the parties the opportunities for cross examination and to present written documentation and other admissible evidence at trial. In addition, there are rules of evidence to determine what is or is not admissible and to weed out unreliable evidence such as hearsay.

Employers would be well advised to prepare for the potential for trial long before the threat of litigation has even presented itself.  Some general tips include:

• Having clear written policies and procedures;
• Consistently enforcing those same policies and procedures;
• Keeping meticulous records;
• Always having a witness present when issuing a disciplinary action or termination;
• Periodically auditing disciplinary and termination procedures for consistency; and
• Maintaining a pretermination checklist.

One other tip: Don’t insult or threaten the entire courtroom, though it was highly entertaining when Tyrion retorted, “I wish I was the monster you think I am. I wish I had enough poison for the whole pack of you. I would gladly give my life to watch you all swallow it.” While we all anxiously await Season 6, let us know in the comments about your favorite Game of Thrones moments. What do you think about Shae’s courtroom performance? Did you find her to be more likeable (or at least more sympathetic) in the book or on the small screen? Also, if you had to pick a champion for trial by combat, which character would you choose?

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  Kristin Starnes Gray, FordHarrison
  Kristin Gray represents management in labor and employment matters in the courts, in arbitration, and before government agencies, including the EEOC, the U.S. Department of Labor, the South Carolina Department of Labor, the South Carolina Human Affairs Commission, and other agencies at the federal, state and local level. She concentrates her practice on representing management in matters related to employment issues including discrimination, harassment, and retaliation claims under Title VII, the ADA, the ADEA, and state law. Kristin also assists management with issues related to HIPAA compliance, employment policies, handbooks, the FMLA, contracts, separation agreements, wage and hour, and other workplace matters. Find her on LinkedIn here.