The jury and the award: Convincing 12 strangers

To win an employment case, the jury must like your client and you must present the client’s story clearly

2014 April

Proving damages in employment cases is different – and arguably easier – than doing the same in the average personal-injury case. Most anyone, minus the super-wealthy, depend on their jobs and careers as the gateway to feeding themselves, housing their children, schooling, medical and health care, social activities and the list goes on and on. Perhaps more painful for the average worker wrongfully terminated from a job is the embarrassment, loss of esteem, personal satisfaction and disassociation from their family of co-workers – a second area of huge damages not present in all personal injury cases.

The 12 members of a jury sit through weeks of arguments, testimony and evidence to determine what the “real” story of a case is. The jury’s job for those weeks is to listen to attorneys argue for the fate of their clients. For those weeks, the jury is the gatekeeper that determines whether the plaintiff goes home with nothing or goes home with a multi-million dollar verdict.

While the facts of each case determine the legal standard, the jury determines how much money – if any − is going home with the plaintiff. In a jury trial, the fact finders are the 12 men and women who have been randomly selected to determine the fate of a stranger.

Jurors sit through weeks listening to both sides present their arguments. The facts are just the facts. But what lawyers must do is to present those facts in the best way to tell our clients’ stories.

Punitive damages

In 2011, U.S. Department of Justice released a special report stating 13 percent of civil cases with punitive damages had a punitive award of $1 million or more. (Punitive Damage Award in State Courts, 2005, Thomas Cohen J.D., Ph.D, Kyle Harbacek, U.S. Department of Justice, Office of Justice Program, Bureau of Justice Statistics, March 2011.)

The jury has unique freedom in the legal system. There are no standards for the jury to award money for pain and suffering. (On Juries and Damages Awards: The Decision Making Process, Edith Greene, Law and Contemporary Problems, Vol.52 No:4, 226.) Since there is no set standard for pain and suffering to award money, the jury has freedom to determine how much emotional pain is worth. The jury can award punitive damages for however much they determine the defendant should be deterred or punished.

California law states punitive damages are awarded when “the defendant has been guilty of oppression, fraud, or malice.” (Code Civ. Proc., § 3294, subd.(a).) The conduct must be so despicable that it subjected the plaintiff to cruel and unjust hardship; intentional; or willful conduct with a conscious disregard of others. Punitive damages are designed to deter and punish defendants for the specific conduct that they caused the plaintiff.

However, punitive damages have guidelines that the court must follow. The jury can award any amount, but it must satisfy the constitutional issue of due process.

In BMW of North America Inc. v. Gore (1996) 517 US 559, a jury awarded the plaintiff $400 for his compensatory damages but awarded $2 million in punitive damages. On appeal, the U.S. Supreme Court found the amount of punitive damages was “grossly excessive” because the 500 to 1 ratio of punitive damages to compensatory damages violated due process. The actual damages to the plaintiff were only $400 but the defendant was punished for over 500 times that amount. The Supreme Court found that the jury was punishing the defendant for other conduct outside of what had occurred to that particular plaintiff.

From Gore, there are guideposts to determine if a punitive damage award conforms with due process: the degree of reprehensibility of defendant’s conducts; the disparity between the actual harm (the compensatory) and the punitive award; and the comparable civil penalties and the punitive award. The punitive award is typically a 10:1 ratio of punitive damages to actual damages.

Following Gore, seven-figure punitive damage awards have been upheld by the courts. (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413 [$1 million in punitive damages upheld]; Roby v. McKesson Corporation (2009) 47 Cal.4th 686 [punitive damages reduced to $1.9 million]; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128 [$6.9 million in punitive damages upheld]; and Morgan v. New York Life Ins. (6th Cir. 2009) 559 F.3d 425 [upholding $6 million in compensatory and $6 million in punitive damages for discrimination claims].)

Numerous post-Gore and State Farm cases have upheld large ratios of punitive damages to compensatory damages. Bullock v. Phillip Morris (2011) 198 Cal.App.4th 543, rev. den. November 30, 2011 [upholding 16:1 ratio]; Bronakowski v. Lindhurst (Ark. Ct. App. 2009) 324 S.W.3d 719 [upholding 42:1 ratio]; Saunders v. Branch Banking and Trust Co. of Va. (4th Cir. 2008) 526 F.3d 142 [upholding 80:1 ratio]; Kemp v. American Tel. & Tel. Co. (11th Cir. 2004) 393 F.3d 1354 [upholding 2,000:1 ratio]; Abner v. Kansas City Southern R. Co. (5th Cir. 2008) 513 F.3d 154 [upholding 125,000:1 ratio]; EEOC v. Federal Express Corp. (4th Cir. 2008) 513 F.3d 360 [upholding 12.5:1 ratio]; Hamlin v. Hampton Lumber Mills Inc. (Or. 2011) 246 P.3d 1121 [upholding 22:1 ratio]; Romanski v. Detroit Entertainment, LLC (6th Cir. 2005) 428 F.3d 629 [upholding 2,150:1 ratio]; Rodriguez v. Caribbean Forms Manufacturer (1st Cir. 2005) 399 F.3d 52 [upholding 199,999:1 ratio]; Goff v. Elmo Greer & Sons Const. Co., Inc. (Tenn. 2009) 297 S.W.3d 175 [upholding 151:1 ratio]; State v. Carpenter (Alaska 2007) 171 P.3d 41 [upholding 30:1 ratio]; Myers v. Workmen’s Auto Ins. Co. (Idaho 2004) 95 P.3d 97 [upholding 408:1 ratio]; Lincoln v. Case (5th Cir. 2003) 340 F.3d 283 [upholding 110:1 ratio].

The defendant’s wealth is a factor when determining punitive damages. If a defendant is extremely wealthy, such as a Fortune 500 company, there is a different price to deter them than a college graduate with student loan debts.

Pain and suffering

In employment cases, the plaintiff recovers their lost past and future wages and benefits. Additionally, the plaintiff is entitled to be compensated for all of their past emotional suffering and damages due to the wrongful termination, discrimination or harassment that they suffered.

We as lawyers have the task to turn a person’s pain and suffering into an identifiable number. How do you put a number on the sleepless nights, feelings of hopelessness, and countless tears?

The emotional distress can be a significant amount of the final award. Stockett v. Assoc. of Cal. Water Agencies Joint Powers (2004) 34 Cal.4th 441, 502 [reinstating $4.5 million compensatory damages award in retaliatory wrongful discharge case]; Passantino v. Johnson & Johnson (9th Cir. 2000) 212 F.3d 493 [upholding $3.1 million compensatory damages award in retaliation lawsuit]; Kelley v. Airborne Freight Corp. (1st Cir. 1998) 140 F.3d 335 [upholding $4 million in compensatory damages on federal and state age discrimination claims]; Hemmings v. Tidyman’s, Inc. (9th Cir. 2002) 285 F.3d 1174 [upholding $1.93 million and $2.2 million awards in two discrimination cases]; Hope v. Cal. Youth Authority (2005) 134 Cal.App.4th 577, 587 [upholding $1,917,104 million compensatory damages award as not “shock{ing} the conscience”.]

It all begins with who is on your jury. Knowing to whom you are presenting the facts is one of the first things that happens in a trial. The jury can make or break years of legal work. Twelve individuals of various backgrounds stand between a win and a loss.

Voir dire

“Research indicates that juries make decisions based more firmly on their values, beliefs, and experiences than on the case facts.” (The Art of Forensic Psychology, Katherine Ramsland, http://www.crimelibrary.com/criminal_mind/forensics/forensic_psychology/12.html.) This is why it is so important to know who is on the jury.

The jury you choose needs to like your client. You need to make the jurors like your client and want to help your client. It does not matter if the facts of the case are clearly in your favor if the jurors do not like your client. Once inside the jury room, they decide the fate of your client. The jury should feel a connection with your client. Most importantly, they should feel like they want to help out your client.

All of our decisions in life are based off of our past experiences and beliefs. While a juror may see the facts clearly for one side or another, if the attorney presenting the case comes off as rude or egotistical the juror may not vote in your favor because of the attorney, not the facts.

The facts may be more complex than the average person would have knowledge. It is extremely important to be clear and effective when communicating to the jury. They are randomly selected and picked up from their everyday lives. They are then thrown into the legal system with the task of deciding somebody else’s fate.

The experts

One tool that is useful to aid the jury in understanding your case is the expert witness. Expert witnesses have specialized knowledge beyond that of an average individual and their testimony aids the jury in understanding the facts and law of the case.

Experts can be a great tool because the experts can make a complex subject understandable to the jury. It is important to know when an expert should be retained by you in order to aid the jury. The case should appear clear and understandable to the jury in order for them to vote in your client’s favor. The final decision should be effortless for them to see; that clearly the weight of the evidence and facts lie in your client’s favor. If there are subjects that will become confusing or need clarification, an expert witness can be a great asset for litigation and trial.

Two types of expert witnesses exist: retained experts and non-retained experts. A retained expert is a witness whose purpose is for “forming and expressing opinion in anticipation of the litigation or in preparation for the trial of the action.” (Easterby v. Clark (2009) 171 Cal.App.4th, 772, citing Schrieber v. Estate of Kiser (1999) 22 Cal.4th 31, 36.)

Retained experts help each side explain to the jury the expert’s own opinion on a certain aspect of the case. A common example of a retained expert is the economist. An economist can help the jury determine the amount of award owed to the plaintiff. In employment cases, the jury may not know how much money to give for a wrongful termination case. How can 12 people of varying backgrounds determine how much money to give someone who has been wrongfully terminated? How much money should they give for lost wages? Future wages? Retirement? Benefits?

That is where the economist comes in. Determining how much money a person has lost since being terminated is easy; the calculation would be simply adding up the time since termination until the present day. But how much money should be given for future wages?

The economist can testify to any tests done in preparation for litigation. Future lost wages are determined by how much longer the employee would have continued working but for the wrongful termination. This allows a credible witness to give the jury information about the real damages that have occurred to the plaintiff. It is easy to see lost past wages, but lost future wages are harder to grasp without an expert economist to testify.

For employment cases, damages can become more complicated if the plaintiff goes back to work. The plaintiff has to mitigate their damages, their injury, by seeking substantially similar employment. This is another reason why expert witnesses are important. The economic expert can aid the jury in determining how much money should be deducted, if any, from an award based on plaintiff’s new employment.

Always remember that while the expert can testify about what they think damages should be, the jury does not have to take their testimony as truth. The jury will ultimately decide what amount of damages should be awarded, even if an expert economist is on the stand.

Non-retained experts

Non-retained experts are witnesses to the case as well but they can only testify to form their opinion based on their perception. (Evid. Code, § 800.)

The California Supreme Court in Schreiber v. Estate of Kiser, stated that a typical non-retained expert is like a treating physician. The treating physician is an expert because medical knowledge is a specialty, but the treating physician did not see the client or witness in preparation of trial.

Summary

Once both sides have presented their case to the judge and jury, your client’s fate is left in the hands of 12 strangers. All of your legal arguments do not hold any weight if the jury did not understand the facts clearly in favor of your client.  If you leave the jury with the impression of someone who has clearly been wronged, and who is likable to the jury, then the jury will feel like they want to help out your client.

If your client’s story comes off as brash or harsh to jurors, they become less sympathetic and less likely to want to help your client. It is simple human nature that if you like someone, you are more willing to believe that what they are saying is the truth. For trial, that means if the jury likes your client the jury will be more willing to go out of its way to award larger damages. The human factor comes into play no matter how much evidence you present or how many credible expert witnesses you can bring into the courtroom. The plaintiff attorney’s job is to make the story clear for the jury to understand; to make it easy for the jurors to sympathize and ultimately help your client. The amount of damages comes down to how well you can make a jury empathize with a total stranger for a few weeks.