John D. Winer, Esq.
Jury Selection Generally
Jury selection is critical in any trial. In Federal Court, jury selection is governed by Federal Rules of Civil Procedure 47. Under FRCP 47(a), the court may permit the attorneys to examine prospective jurors or may conduct the examination itself. If the court elects to conduct the voir dire itself, the court must permit the attorneys at ask follow-up questions as the court deems proper, or shall itself submit to prospective jurors additional questions through the attorneys as it deems proper. FRCP 47(a); U.S. vs. Corey, 625 F.2d 704, 706-08 (5th Cir. 1980).
Selecting the right versus the wrong jury may be the most important element of any sexual harassment trial, so the subject of voir dire will be heavily emphasized in this article. People have very strong views about sexual harassment as opposed to other types of issues. People do not spend much time thinking about the civil justice system, employment cases, or other personal injury cases, however sexual harassment cases are different. Since the Anita Hill hearings, sexual harassment has become a part of our national dialogue. People do spend a lot of time talking and thinking about sexual harassment. By this time, anybody who works for a mid-sized to large company has received sexual harassment training. Further, some of the potential jurors will have been involved as parties or witnesses in sexual harassment cases.
Because sexual harassment has become such a significant national focus, potential jurors’ opinions on this subject may almost rise to the level of belief; “…a conviction of the truth of some statement or the reality of some being or phenomenon, esp., when based on examination of evidence.” Webster’s Ninth New Collegiate Dictionary.
This is extraordinarily significant in jury selection because, one, a person’s particular background in sexual harassment can become a critical factor as to how they view evidence, two, certain subsets of our population tend to be on opposite sides of the issue of sexual harassment, and, three, there is probably very little that an attorney can do at a trial to change, alter, or even modify a potential juror’s strong belief system in the area of sexual harassment.
Background of the Juror
By current standards, many, many potential jurors, particularly female jurors, have been sexually harassed in the workplace. Almost by definition, many other potential jurors, mostly men, have under current standards sexually harassed women at some time. The rest of the potential jurors have probably witnessed sexual harassment in one form or another or know somebody who has been sexually harassed. To make matters far more complicated for jury selection, although people love to talk about sexual harassment in the abstract, very few people like to talk about their personal experience with sexual harassment, particularly if they have been a victim or perpetrator.
Any voir dire plan in a sexual harassment case must include the creation of an atmosphere in which people are willing to speak openly and honestly on the subject. Jury questionnaires in which people can confidentially identify whether they have been involved with sexual harassment may be extremely useful. An effort should be made to convince the trial judge to allow the attorneys to utilize a questionnaire, and then interview the people who have had experience with harassment in the privacy of the judge’s chambers.
A direct, open question in front of the other jurors as to whether a juror has been sexually harassed is very unlikely to result in a truthful answer. The question to a juror as to whether or not they have harassed an employee is even more unlikely to result in a truthful answer. The best way in open court to encourage people to reveal their opinions and beliefs about sexual harassment is to ask them about well-known cases like Anita Hill or the Weeks vs. Baker, MacKenzie case, in which a legal secretary was sexually harassed by a partner of one of the largest national law firms. A discussion of these cases may open a juror up to a discussion of their own experience, and, at the very least, learning of their opinions in the well-known cases will be valuable.
SUBSETS OF THE POPULATION
Through experience in the use of focus groups in jury selection preparation, we have learned that certain segments of the population tend to have different points of view about sexual harassment. One must keep in mind that there are always exceptions to any tendency or stereotype. Also, since every sexual harassment case is different, variation in parties and fact situations may influence the type of juror an attorney wants to accept or reject. However, the following sociological factors should be considered in the jury selection of the sexual harassment case.
People who are in the workplace have different views of sexual harassment than people who are not in the workplace.
People who work outside the home will be far more likely to have strong opinions on sexual harassment and some actual knowledge of the subject, either through training or experience. Insofar as jury selection in a civil case mostly involves rejecting the jurors the attorney does not want, the claimant’s attorney is probably better off with nonworkers on the jury than workers who have strong negative opinions on the subject. However, a juror without significant work experience can be problematic because they will have difficulty understanding the subtleties of sexual harassment and the importance of employers protecting employees from perpetrators and potential perpetrators. The hope is that a nonworker will be open-minded enough to listen to the testimony of plaintiff’s experts, and be educated on the subtleties of the workplace.
Gender distinctions are also important to recognize; however, they do not provide the easy answer of who will or will not be a good juror for a case. In a case in which the harassment went unwitnessed, women will be more likely to believe the plaintiff than men. However, whether or not they believe the plaintiff may not translate into whether or not they care about the plaintiff’s plight. Many middle-aged to older working women will have the tendency to reject plaintiff’s argument of a hostile work environment based on the fact that they worked in more hostile environments, put up with it, and thought it was normal. They may have the belief that they were treated worse than the plaintiff was treated, yet they did not bring sexual harassment cases and ask for large damage awards. Very young working women may present a different set of problems. They may not have enough experience in the workplace to empathize with the plaintiff and award large monetary damages.
There is a wide range of views amongst single working men on the subject of sexual harassment. A single man who is in management will probably have negative views of sexual harassment because he will see himself as a potential victim of somebody like the plaintiff. Single men who work in an industry in which sexual harassment may be more acceptable, like construction, will also probably be poor plaintiffs’ jurors. Single men who work for large companies, who have received sexual harassment training, who will follow that training and understand the subtleties of the workplace, may be good plaintiffs’ jurors. Single men with girlfriends in the workplace will probably be good plaintiffs’ jurors.
Men with spouses in the workplace, and fathers with working daughters, are by far the best jurors from the plaintiff point of view. They rely upon large companies to keep their family members safe when they are at work and they can become very angry at a company that does not protect its vulnerable workers. Since the largest verdicts in sexual harassment cases almost always evolve from a juror’s anger at the defendant, the fathers and husbands of women in the workplace will almost always be the best jurors for the plaintiff. These are the jurors who will most likely want to award significant punitive damages to send a message to all employers that they must protect vulnerable workers.
NON-CHANGEABILITY OF POTENTIAL JURORS’ BELIEFS
If an attorney learns on jury selection that a potential juror has strong beliefs on the subject of sexual harassment or if he or she fits firmly into one of the subsets mentioned above, do not assume that you, your client, or witnesses will be able to change a potential juror’s attitude on the subject of sexual harassment. Any trial involves the education of a jury. However, it is far more difficult to educate people who are hostile to your position than it is to educate people who believe in your position, are neutral to it, or who may lean to the other side of your position, but have not formulated strong beliefs or attitudes on the subject. Although it may happen, an attorney will be highly unlikely, no matter how skilled, to move a juror off their belief system.
Many times potential jurors will express negative attitudes on the subject matter of lawsuits and plaintiffs and plaintiffs’ attorneys who bring them. We have learned that these opinions are based on very little accurate information and can be overcome at a trial in which the plaintiff puts on a strong case. These people, who are most of the population at this point in time, are very different than people who have actually joined tort reform organizations, and are either giving money or time to fight against the very thing that the plaintiff attorneys and plaintiff are fighting for. Plaintiff attorneys can live with jurors with hostile opinions; they cannot live with jurors with deeply-felt beliefs. Likewise, since many, many potential jurors, especially those in the workplace, have strong belief systems on the subject of sexual harassment, an attorney must recognize that these potential jurors are unlikely to be swayed. Jury selection should be planned to find and eliminate all jurors with hostile attitudes on the subject of sexual harassment.
In terms of the remaining jurors, the basic concept to remember in jury selection is that the plaintiff is looking for jurors who will get angry at the defendant and will award large punitive damages. The emphasis in the case will be the misconduct of the defendant rather than the victimization of the plaintiff; therefore, it becomes much more important to find jurors who will punish large corporations by making large punitive damage awards than it is to find jurors who will empathize with the plaintiff.
PRACTICE TIP: As long as sexual harassment remains a “hot topic” for the media, attorneys trying sexual harassment cases must keep current on cases that are reported in the mass media. Jurors, in ways that they may not even realize, will be affected by cases that they read or hear about in the media. In order to be able to perform a successful voir dire, an attorney must be aware of what the jurors are being exposed to through the media on the subject of sexual harassment. For instance, a recent case of a six-year-old boy, who was suspended from school for kissing another little girl, will probably cause people to have intense negative feelings against sexual harassment cases. If that case, or a case like it, is in the media at the time an attorney is trying a case, it must be dealt with on voir dire, and it can only be dealt with if the attorney is aware of the problem. Also, a discussion of the “hot” cases is a good starting-off point for developing a rapport with a prospective juror.
Use of Focus Groups in Planning Jury Selection and Trial Strategy.
It is important to utilize jury consultants and conduct focus groups and mock trials in any significant sexual harassment case. Because potential jurors have strong attitudes on the subject of sexual harassment and because it is difficult to get jurors to talk about their experience with sexual harassment, it is important to hire jury consultants to help the attorney identify subsets of people who are likely or unlikely to be good jurors in a given sexual harassment case. An attorney cannot rely upon stereotypes alone to choose or reject jurors, and he or she cannot generalize from one case to another. Jurors’ impressions and opinions may differ depending upon the plaintiff and defendant in a particular case, and the type of alleged harassment.
At the very least, in any significant case an attorney should hire a consultant to help prepare, and perhaps help conduct, jury selection. Further, it is generally a good idea to hire consultants to perform some type of mock trial/focus group in which mock jurors are presented both sides of the case and then are asked to express their opinions about the case, and, in certain situations, deliberate. A well-conducted focus group will not only help an attorney assess which jurors are likely to be good or bad in a given case, but also will help him or her prepare for trial because the mock jurors will point out the weaknesses or strengths of a case. Jury consultants can also be utilized to prepare jury questionnaires and actual voir dire questions.
For a more detailed discussion on the retention of jury consultants and use of focus groups see Kolczynski, Preparing for Trial in Federal Court, 2nd Edition, pp. 218 – 222.
PRACTICE TIP: Though focus groups are very useful for determining which jurors will be on a particular “side” in a case, they are far less useful in predicting monetary awards. If the value of the case justifies it, an attorney should consider several focus groups and compare the monetary verdict arrived at by each group, or, to conduct one mock trial with two or three different sets of jurors deliberating separately. If the verdicts of the various juries are similar, then the results will probably be more predictive of the results at trial. In sexual harassment cases, special attention should be paid to ascertaining which jurors will be more or less likely to award punitive damages. After the mock trial jurors have deliberated and reached a result, it may be worthwhile for the focus group leader to ask the jurors their feelings about a punitive damage award at various monetary levels. This may help sort out the juror who will be good for the case on liability, but bad for the case on punitive damages.
Use of Jury Questionnaires
Because people hold such strong beliefs on the subject of sexual harassment, yet are hesitant to express their own beliefs or experiences, the use of jury questionnaires, when possible, becomes critical. Jury questionnaires in which people can confidentially identify whether they have been involved with sexual harassment may be extremely useful. An effort should be made to convince the trial judge to allow the attorneys to utilize a questionnaire, and then interview the people who have had personal experience with harassment in the judge’s chambers.
It is generally within the discretion of the court to allow attorneys to submit a jury questionnaire during voir dire. See FRCP 47(a), Los Angeles Memorial Coliseum Commission vs. NFL, P. 78, etc.
PRACTICE TIP: Although questionnaires are a good way of ascertaining very private information, they do not allow an attorney to explore a juror’s feelings and watch a juror’s response to an answer. Since the subject of sexual harassment will arouse strong feelings in the jurors, an attorney must be careful to not overload the questionnaire with questions that are meant to elicit “feelings.” These questions should be saved for oral questioning after the jurors have filled out the questionnaire. Careful attention should be paid to the juror’s body language while he or she answers a question and not just the words that the juror uses.
Sample Voir Dire Questions
Examples of voir dire questions which may be utilized in sexual harassment cases are:
1. Do you know anybody who claims to have been sexually harassed?
A. What was your relationship to them?
B. What do you know about the person’s experience?
C. What did he or she do about it?
D. What was the outcome of his or her situation or case?
E. Did that situation cause you to have any feelings on the subject of sexual harassment?
F. What are those feelings?
2. Do you know anybody who has been accused of sexual harassment?
A. What was your relationship to them?
B. What information did you learn about their case?
C. What happened to him or her?
D. Did that situation cause you to have any feelings on the subject of sexual abuse?
E. What are those feelings?
3. What are your feelings about sexual harassment cases?
4. There are no actual witnesses to the sexual harassment in this case. What are your feelings about being asked to decide a case in which you have to believe the word of the plaintiff or the defendant?
5. Do you have any opinion as to whether people who claim sexual harassment are telling the truth or lying?
A. What is that opinion?
6. What training have you received in the area of sexual harassment?
A. Describe the training.
B. What details do you remember about the training?
C. Do you believe that it is a good or bad thing that your company has training on sexual harassment?
7. Do you know about any sexual harassment claims at places where you have worked?
A. What was the nature of the claim?
B. How was it handled by your company?
C. What was the outcome of the case?
D. What are your feelings about it?
8. If you believe you were sexually harassed, would you:
A. Report it to a supervisor?
B. Report it to Human Relations?
C. Not report it to your employer for fear of retaliation?
D. Bring a lawsuit?
9. Would you have any hesitation to bring a lawsuit if you were sexually harassed?
10. What are your feelings about people who bring sexual harassment lawsuits?
11. When you hear about a sexual harassment case, do you identify more with the alleged victim or the alleged perpetrator?
12. Do you have any feelings about whether or not a company should attempt to prevent sexual harassment?
13. Do you know about the Anita Hill case?
A. What are your feelings about that case?
B. Did you believe her?
14. What are your feelings about the Baker, MacKenzie case?
A. Did you feel that the verdict was too large?
B. Did you understand that a jury just like you heard the facts of the case and decided that the law firm needed to be punished by a large verdict?
C. Did you realize that there were six prior victims of the perpetrator, and the company did nothing to protect employees from the risk of harassment? Does this change your view of the case?
15. What are your feelings about people who come into court asking for money damages for sexual harassment?
A. Do you think these cases should be handled in other ways?
B. Do you have feelings one way or another about a person who brings a case like this?
16. Have you ever worked in an environment which you considered hostile for one reason or another?
A. What, if anything, did you do about it?
B. If you didn’t do anything about it, why not?
17. What are your feelings about punitive damages?
A. If the evidence justifies it, will you feel comfortable awarding a verdict which will send a message to this and other employers that sexual harassment will not be tolerated?
B. If the evidence justifies it, will you be able to award a seven-figure punitive damage verdict?
PRACTICE TIP: It is a good idea to have written voir dire questions prepared in case the court does not permit the attorneys to ask follow-up questions, and, rather, asks the attorneys to submit questions to the court. Under FRCP 47(a), the court may permit the attorneys to examine prospective jurors or may conduct the examination itself. If the court elects to conduct the voir dire itself, the court must permit the attorneys to ask follow-up questions as the court deems proper, or shall itself submit to prospective jurors additional questions to the attorneys as it deems proper. FRCP 47(a) United States vs. Corey, 625 F 2d, pp. 704, 706-708, (5th Cir. 1980).
The opening statement in a sexual harassment case should provide the jurors with the beginning of the framework that they will need to decide the case. Although most jurors will have strong opinions on the subject of sexual harassment, they will not know the actual law and they will not know how they are supposed to apply the law to the actual facts of the case. Although closing argument is the designated time for explaining to the jurors the reason why the facts and the law in a particular case should dictate a verdict for the plaintiff, in opening statement the attorney must, as much as possible, explain the laws of sexual harassment. The attorney should mention the basic elements of the law which jurors will have to follow. The concept of unwelcome touching should be introduced. Hostile work environment should be explained. In the proper case, the law against quid pro quo arrangements between employers and employees should be explained to the jury.
Since the plaintiff will probably not be the first witness, it is important to tell the plaintiff’s complete story in opening statement. Without this preview, the jurors will be lost and confused as they listen to the testimony of the experts and lay witnesses. As much as possible, the emphasis should be kept away from the plaintiff and the perpetrator, and put on the policies, procedures and actions of the employer. The responsibilities of an employer under the law to prevent sexual harassment should be explained to the jury. The jury needs to understand how, under the law, sexual harassment policies must be implemented. Finally, an explanation of why the reaction of the employer to this particular allegation of harassment is so important to the plaintiff and to society. If the employer failed to adequately handle prior complaints of harassment, this fact should be emphasized. If the employer failed to respond adequately to the plaintiff’s complaint, what signal did this give, not only to the plaintiff, but to other supervisors in the company who watch the misconduct go uncorrected?
In most cases, the conduct of the plaintiff needs to be explained to the jurors during opening statement. Why did the plaintiff stay in the harassing situation? Why did the plaintiff not report earlier. What finally caused the plaintiff to take action? The defense will put a negative spin on the plaintiff’s conduct, therefore plaintiff’s attorney must deal with the situation before the defense has a chance to poison the jurors.
Finally, advise the jurors that you will be asking for a punitive damage award at the conclusion of the case.
For a detailed discussion of the preparation of an opening statement, see Kolczynski, Preparing for Trial in Federal Court, 2nd Edition, pp.230-231.
Testimony of Plaintiff’s Expert Psychotherapist
One of the most difficult decisions a plaintiff attorney has to make in a sexual harassment case is whether or not to call as a witness an expert psychotherapist. There are a number of advantages and disadvantages to testimony of a psychotherapist, and, those advantages and disadvantages must be weighed and a decision made on a case-by-case basis. The advantages of calling a psychotherapist are:
1. To explain to the jurors the plaintiff’s behavior while he or she remained employed. A psychotherapist can answer the questions of why the plaintiff simply did not quit, or why the plaintiff did not do more to resist the harassment, or did not report the harassment earlier. In most cases, there is a sophisticated psychological explanation which will answer these very important questions which the jurors will be asking.
2. To explain to the jury the inherent power differential that exists between employers and employees. The power differential usually goes beyond the power created by the ability to fire someone. There are major subtle psychological forces at work in the workplace that provide an explanation for how sexual harassment occurs and why it must be stopped.
3. In cases in which the plaintiff has not been able to return to work or seek alternative employment for psychological reasons, it is probably imperative to have a psychotherapist explain the plaintiff’s disability.
4. In cases in which plaintiff developed a serious mental disorder as a result of the defendant’s misconduct, a psychotherapist will probably be necessary to explain the nature of the disorder and why it was caused by the defendant’s misconduct.
5. Utilization of a psychotherapist can obviously have the potential of increasing the general damage award by explaining to the jury the plaintiff’s degree of distress.
6. In cases in which the plaintiff will not make a good witness in his or her own behalf, it may be helpful to call a psychotherapist to explain why the plaintiff has negative traits which will turn off a jury.
7. Psychological testing can objectify the plaintiff’s injury.
As previously mentioned, there are a number of disadvantages to the utilization of psychotherapists at trial. They are:
1. It may appear to a jury that plaintiff and plaintiff’s attorneys are attempting to “build up” a case and overreact.
2. Jurors are naturally turned off to the testimony of psychotherapists.
3. Plaintiff’s entire psychological history will come into evidence if a psychological injury is claimed. In virtually every case negative facts about the plaintiff will be presented to the jury, which, would not be presented if plaintiff was not claiming a psychological injury and a psychotherapist did not testify.
4. The testimony of a psychotherapist will naturally focus the attention of the jurors on the plaintiff and his or her psyche. In many sexual harassment cases, the attorney wants the attention on the misconduct of the defendant and not on the plaintiff.
5. In most psychological injury cases, it is advantageous for the plaintiff to call a psychotherapist as an expert because the psychotherapist can explain to the jurors why this particular plaintiff was vulnerable to the psychological trauma in question and why he or she had the severe psychological reaction, which most people would not have had, as a result of the trauma. This technique of emphasizing the plaintiff’s vulnerability to separate the plaintiff from the jurors, so useful in other cases, may backfire in a sexual harassment case in which the defense will be claiming that the defendant’s conduct was not unreasonable, but, rather, the plaintiff was overly “sensitive.” Thus, testimony which might help on damages, i.e., plaintiff became mentally disordered because he or she was vulnerable, may hurt on liability, i.e., a nonvulnerable person may not have been hurt. The defendant will argue that a supervisor does not have the training of a psychotherapist to determine who will or will not be vulnerable to a particular form of conduct. Since the law in most states deals with a “reasonable woman standard,” plaintiff must be careful not to paint herself as an “unreasonable woman.”
There is a potential compromise solution to the question of whether or not to use a psychotherapist. That is, plaintiff can waive any claim of mental disorder other than garden-variety emotional distress, thereby protecting the plaintiff’s psychological history from exposure at trial. Then plaintiff can retain an expert psychotherapist, not for the purpose of describing mental disorder or injury to the plaintiff, but rather, to testify to the power differential in the workplace and to an explanation of why the plaintiff acted like he or she did during the course of his or her employment.
To summarize, most jurors do not need the explanation of a psychological expert to understand why being wrongfully fired is a bad and psychologically damaging event. The only cases in which plaintiff should call a psychological expert are cases in which the plaintiff has developed a psychological disorder beyond what would normally be expected of the consequences of a sexual harassment case, and the plaintiff has a very clean life, work, and psychological history. If a psychological expert is called, he or she should generally be called as a witness before plaintiff testifies to explain why the plaintiff was so seriously psychologically disabled by the termination and to explain to the jury that the plaintiff was not such a disordered person before the termination. This is particularly important in a case in which the plaintiff is seriously depressed or anxious as a result of the termination and will not appear at trial like he or she was a good performer at the subject job.
The admission of expert testimony at trial in federal cases is governed by Federal Rules of Evidence §§702-705. Cases which report the utilization of psychological experts at trial include U.S. v. Stinson, 34 M.J. 233 (CMA 1992) and U.S. v. Plenty Arrows, 946 F 2d 62 (8th Cir. 1991).
Testimony of Plaintiff’s Vocational Expert
Careful consideration should also be given as to whether or not the plaintiff should call a vocational expert. Although the vocational expert can explain to the jurors the difficulty in obtaining new employment, lack of job mobility in our society, and the difficulties in retraining, particularly for older workers, the vocational expert will generally have to concede that it is possible, if not likely, that the plaintiff will be able to find alternative employment in the future.
In cases in which the plaintiff is relatively young, highly-skilled and well-trained, yet not re-employed as of the date of the trial, the plaintiff may be better off relying on his or her own testimony regarding job search to indicate the difficulties that he or she has had and will have in the future obtaining employment rather than calling a vocational expert who may have to testify to a large number of jobs still available to the plaintiff. For a discussion on the utilization of vocational experts, see Martin, Determining Economic Damages, §§900-902.
An important consideration in determining whether or not to call a vocational specialist may be the law on mitigation of damages in the particular jurisdiction in which the case is being tried. In some jurisdictions, the plaintiff need only mitigate damages by seeking equivalent employment. In these jurisdictions, the testimony of a vocational specialist as to the limited number of equivalent jobs available given the training and experience of plaintiff can be very valuable. In a jurisdiction in which the plaintiff must take any job that is available, the testimony of a vocational specialist will likely backfire, since it will reveal the large number of other jobs available.
If a vocational specialist is called, he or she should testify to the difficulties that an employee will have finding employment once they have been terminated or quit due to a sexual harassment claim as opposed to being laid off or voluntarily ceasing employment. A vocational specialist can testify that it is far more difficult to find a job when someone does not already have a job and even more difficult still when the plaintiff has the black mark of being a litigant in an employment case. In an appropriate case, the vocational expert can testify to the difficulties which a plaintiff will have finding equivalent employment once he or she has been branded as a “troublemaker.” The issues of the difficulties and expense of retraining can be included in the testimony of vocational expert, again with emphasis on how much more difficult it is to retrain people who have been victimized by their prior employer.
In addition, the vocational expert can testify as to the unlikelihood of plaintiff being able to make a truly lateral shift to another company at the same salary. Because workers are rewarded in terms of wages and benefits because of loyalty and length of service to one company, it is difficult for an employee, and in particular an employee who left his prior job on bad terms, to obtain an equivalent starting salary in another company.
In cases in which a vocational expert is utilized, he or she may be the best witness to talk about the value of fringe benefits the plaintiff lost up to the time of trial and will lose into the future.
The admission of expert testimony at trial in federal cases is governed by Federal Rules of Evidence §§702-705. For a discussion on the preparation of expert witnesses, see Kolczynski, Preparing for Trial in Federal Court, 2nd Edition, pp. 234-238.
Testimony of Plaintiff’s Economist
There are cases in which the plaintiff has a complex pay or earning structure in which the testimony of an economist is essential. This is particularly true in cases of fired executives, who have rights to profitsharing plans, incentive bonuses, performance bonuses and other factors which are beyond the grasp of ordinary jurors. In those types of cases, the expert must not only describe the plaintiff’s losses, but explain the losses in terms that are clear, simple and understandable by a lay jury. For a general discussion on the use of economists at trial, see Martin, Determining Economic Damages, Chapter 1.
In cases in which the plaintiff is a wage earner, an economist is probably not necessary to explain back pay. However, in most jurisdictions, lost front pay needs to be reduced to present value, which may require the testimony of an economist. Martin, Determining Economic Damages, Chapter 11. The question that an economist needs to answer is how much money will it take in current dollars to reimburse the plaintiff for future income loss. Since the plaintiff will theoretically be able to invest money recovered at the time of trial to compensate for future wage loss, he or she will presumably be able to earn money on investments which, in part, will compensate him or her for future losses. On the other hand, given the likelihood of inflation, it will be plaintiff’s economist’s position that he or she would, even without raises, earn more money for the same job in the future than he or she is earning now. Further, during that same time period, the purchasing power of the dollar will decrease. An economist will determine the loss of future earnings in income by determining a discount rate (i.e., the rate of interest rate over the rate of inflation). Martin, Determining Economic Damages, Chapter 11 and Chapter 12.
Present cash value has been defined as “the present sum of money which, together with investment return therein when invested so as to yield the highest rate of return consistent with reasonable security, will pay the equivalent of lost future benefits at the time, in the amounts, and for the period that you find future benefits would have been received.” California Jury Instructions, Civil Eighth Edition (BAJI) 14.70, P. 321.
From the plaintiff’s point of view, if the jury is going to be instructed on present cash value, then it is essential, in a case in which there is a future wage loss, to have an economist testify to the jury about inflation, the rise in the cost of living, and the devaluation of the purchasing power of the dollar over time.
The admission of expert testimony at trial in federal cases is governed by Federal Rules of Evidence §§702-705. For a discussion on the preparation of expert witnesses, see Kolczynski, Preparing for Trial in Federal Court, 2nd Edition, pp. 234-238.
Planning Order of Witnesses
Most sexual harassment cases will be won or lost based upon the testimony of prior victims of the subject perpetrator, and, testimony which indicates the defendant did not act appropriately to protect past, current and future employees from the harassment of the perpetrator. The prior victims of the perpetrator should be the first witnesses and an emphasis should be placed upon the testimony of their cries for help, which were ignored.
Then, plaintiff should consider calling a sexual harassment expert. Most companies consult with experts in the field of sexual harassment to develop procedures and policies. These experts are very useful witnesses for the plaintiff at trial. The experts will testify as to what the defendant should have done in response to the prior victims and the complaints of the plaintiff. This can be followed by the testimony of the key defendants, who should be called as adverse witnesses. The jury will then have the opportunity to contrast what the defendant should have done with what it actually did.
Plaintiff should be the last, or one of the last, lay persons to testify.
Since the key to a large verdict in any sexual harassment case is to allow the jurors to develop anger at the defendant employer, the order of witnesses should be planned to maximize this result.
The plaintiff should be the last, or one of the last, witnesses to testify. Although the jurors will be anxious to hear about what happened to the plaintiff and about how the plaintiff was injured, the attorney must either make them wait or provide this information through the testimony of other witnesses first. This is one of the reasons why plaintiffs’ attorneys should go into great factual detail in opening statement.
There are many reasons not to call the plaintiff as the first witness.
1. It focuses too much attention on the plaintiff, her actions and damages, before a jury is motivated to care.
2. He or she will be sliced apart on cross-examination if he or she has to explain his or her action or inaction before an expert explains it for them.
3. The attorney wants the jurors to hear from the prior victims and to examine the defendant’s failure to respond to those victims before hearing from the plaintiff.
4. Insofar as there is a psychological injury claim, the attorney wants the plaintiff’s psyche to be explained to the jurors before the plaintiff is in a position where she has to explain it to the jury herself, especially on cross-examination.
Remember that plaintiffs in sexual harassment cases do not have to appear mentally disordered. Rather, it will be far more useful if they appear to have strong character traits such as courageousness, endurance and patience, which were simply overwhelmed by misconduct of the defendants.
Employees, co-employees, and friends and family who knew the plaintiff before and after, should testify. These witnesses should emphasize the character and strength of the plaintiff before her exposure to the perpetrator. They then should testify as to his or her struggle during the time of the harassment and, the changes in their personality since their harassment or termination.
Other Evidentiary Considerations
A number of items of documentary evidence may be utilized to support the plaintiff’s claim. These include job applications, indicating that plaintiff has looked for work since termination, favorable performance reviews, letters of congratulations from the employer, earning records, severance pay, and documentary evidence as to retirement pay may be utilized to establish a basis for damages and liability. Plaintiffs can also utilize personnel manuals, appointment handbooks, and policy statements of the employer. For a discussion of introduction and authentication of documentary evidence, see Domjroff, Federal Trial Evidence, §§901-1103.
Documentary evidence of prior complaints will be critical as will all evidence regarding the defendant’s sexual harassment policies.
In appropriate cases, documents such as written reports, sales summaries, and comparative performance evaluations and production compared to non-fired employees may provide good evidence of the plaintiff’s claim. For a discussion of hearsay considerations in Federal Court, see Domjroff, Federal Trial Evidence, §§801-806.
Further, plaintiff will want to introduce evidence of the value of fringe benefits such as health insurance and retirement benefits.
Character evidence will be important in all sexual harassment cases. For a general discussion of character evidence in Federal Court, see Domjroff, Federal Trial Evidence, §§404-405.
Federal Rules of Evidence 608 explains the circumstances when evidence of character and conduct of a witness can be used in Federal Court. For a discussion on the preparation of direct examination and cross-examination of lay witnesses, see Kolczynski, Preparing for Trial in Federal Court, 2nd Edition, pp. 231-234.
Closing argument should begin with the answer to the rhetorical question of “Why are we here?” The jury should be told of the importance of their task and why this case is a particularly important case. “We are here because we as a society have created laws to protect employees and to limit the out-of-control behavior of large corporations. Your decision will go a long way in deciding how people will treat each other in the workplace, (in cases with a female plaintiff) how our wives will be treated, how our lovers will be treated, and how our daughters will be treated in the workplace.
“You will decide whether a company only has a duty of loyalty to the supervisors, who it did not properly control and protected at the expense of the plaintiff and the victims before her, or whether the defendant also has to follow the law and protect its wage-earning employees.
“The company has protected its supervisors; however, only the court can protect lower-level employees like the plaintiff, who are otherwise powerless.
“Are employees who are lower-level employees expendable? Can they be fired for immoral and improper purposes? Can they became the sexual playthings of ‘the big boys’ in the company? Are we going to live in a society where an employee’s only salvation from the harassing behavior of a supervisor is to quit?”
Argue why there are laws prohibiting sexual harassment. Point out to the jury that there are laws which we as a society have passed to protect workers from harassment. The emphasis in most sexual harassment cases should not be on the sex, but rather it should be on the harassment. We as a society have determined what is tolerable and what is intolerable and we have created laws which help clarify for employers what is intolerable. Employers must follow the rules and laws just like we must follow the rules and laws in our jobs. We have to report to work at a certain time and act in a certain way at work. The laws of the state make similar requirements for supervisors who are not allowed to harass employees and must protect employees from harassment.
Argue that defendant’s mistreatment of the plaintiff not only injured plaintiff, it injured every other employee at the company, because the company has sent out a message to all of its employees that sexual harassment is tolerable, and, it is okay for the supervisors to break the law and not protect its employees.
FOCUS LIABILITY ARGUMENT ON MISCONDUCT OF DEFENDANT
Every effort should be made to focus on the misconduct of the defendant, and focus away from the conduct of the plaintiff and injury to the plaintiff.
When arguing general damages, plaintiff’s damage should always be connected to the perpetrator’s mistreatment and the failure of the company to respond to protect the plaintiff and stop the perpetrator. There should not be a “liability” phase of an argument, and then later a “damage” phase of an argument. There should, in fact, first be a liability phase, but then there should next be a liability/damage phase.
Whether or not it is a punitive damage case, a punitive-type general damage argument should be made. In other words, in a case where there will not be punitive damages, do not argue that a large award should be made to “make an example of the defendant or to warn other corporations not to engage in similar misconduct.” Instead, plaintiff’s attorney can make an argument such as the one that follows:
“This company had four prior chances to protect its employees from the harassment of supervisor X. However, the mere complaints of the other employees had no effect on the corporation.
“This corporation had one concern and one concern only, and that is the making of money. This company made millions of dollars while failing to recognize and protect the needs of the workers who helped the company make its profits. Ms. A was one of those workers. She has had to endure an unbelievable amount of harassment and distress so that she could put food on the table for her children. Now the company wants to tell her, “We paid you your wage. Why have you come in here and asked us to pay you more?
“You are not entitled to any more. You are a botherance. You are a nuisance. Go away.”
The above argument is aimed at connecting misconduct with damages and aimed to inspire the jurors to award large general damages based on the way it was treated and how that injured plaintiff.
The final build-up to the damage part of the closing argument can go like this:
“This company is telling Ms. A that she is worth nothing. She was someone whose services they purchased much like they would purchase a machine. If the machine worked and produced, the company had no complaints. When the machines before Ms. A worked and performed despite reported harassment, the company was happy.
“However, when the machines became squeaky and the prior employees complained about intolerable work conditions, the company at first ignored their complaints and then replaced them without fixing the human problem that existed in the company. But somebody needs to tell this company that companies are made up of more than machines; they are made up of human employees. The company can do what it wants to machines that it owns, but, the company does not own its employees, and, there are laws that insure that employees of the company can work in a hostile-free environment and can be treated with human dignity. If you let them get away with this harassment by not fully and completely compensating Ms. A, you are telling the company that not only is Ms. A worthless, but that human dignity and fairness are also worthless, and, the laws only need to be followed by the little people, not the high and mighty corporations. When assessing emotional distress damages in this case, remember that the starting point is assessing the damage that is done to human beings that cannot be done to machines because machines do not feel. If somebody rented this company a multi-million-dollar machine and the company returned it and refused to pay for millions of dollars of damage, would you have any hesitancy in compensating the renter of the machine for the full measure of his damages? Well, in this case, the ‘fixing of the machine’ is only the beginning of the damages which Ms. A suffered. The ‘fixing’ damages are the past and future psychological expenses and past and future wage loss. But since Ms. A is a human being and not a machine, an award of those types of damages does not get Ms. A back to even. Those are simply the smallest element of damages. Laws against harassment are laws which were created to protect human beings from an intolerable insult to their sense of human dignity.
“Because we as a society have determined that human dignity is precious, we as a society have created laws that state that when you attack a person’s human dignity in an intolerable manner, you must compensate them for the full measure of their damages, not simply replace their wages and pay their medical bills.
“What this company has really taken away from Ms. A is her peace of mind. Peace of mind is the most valuable and precious thing that we can have. We all have travails and difficulties in our lives. We all have bad days. We all have difficult times. But as long as we have our peace of mind, we can survive and life is worth living. When you steal away somebody’s peace of mind, you leave them a life of utter torment and despair, self-hatred, anxiety and depression. Every day, every moment becomes bleak and unbearable. Our society recognizes that the insult to human dignity can cause these types of damages, therefore we have outlawed conduct by employers which can create the loss of peace of mind. Our Legislature realized that the score had to be evened when somebody’s peace of mind was stolen from them by a profit-making company who decided to ignore the law and allowed harassment of employees. If you would pay the owner of a machine $2 million for a machine that this company destroyed, what should this company have to pay for the destruction of Ms. A’s peace of mind?”
Focus argument on injustice
The closing argument should focus on the injustice in the way plaintiff was treated by the defendant. As in opening statement, emphasis should be placed on the character and performance of the plaintiff. In closing, however, there should be greater emphasis on what the plaintiff gave to the company and what the company took from the plaintiff in order to help the company do what companies do, that is, make profit. The company profited by, or at least benefited by plaintiff’s human sweat and labor, and, as a result of that, the plaintiff deserved to be treated fairly and justly. The plaintiff, to some extent, was dependent upon the goodwill and good faith of the company, and, the company let the plaintiff down by not acting with goodwill and good faith toward plaintiff. The sacrifices which plaintiff made for the company should be emphasized. In other words, a jury needs to understand what the plaintiff gave up to serve the company’s interests.
The theme of the punitive damage argument will be that defendant failed to police itself in terms of preventing sexual harassment in the past; therefore, it will take a punitive damage award to ensure that this time the company “gets it,” that is, that we as a society have decided that sexual harassment of employees is not tolerable and cannot be permitted. Left to its own devices, the defendant permitted a hostile work environment to exist and flourish. Defendant received warnings that it had a serious problem, yet the defendant ignored the warnings.
A small punitive damage award will do absolutely nothing to prevent this type of misconduct from occurring in the future. A small punitive damage award will, first, send a message to the defendant that it can get away with sexual harassment and it will also send a message to all other corporations that if they, like defendant, violate the law, they will basically be able to get away with it and receive only a slap on the wrist. The only punitive damage award that will matter is one that will actually make the defendant hurt, and the only place it can hurt is the pocketbook. The defendant and all other corporations must receive the message that ignoring the sexual harassment problem within the company, or retaliating against a person who reports sexual harassment, cannot be written off as a cost of doing business.
The jurors must receive the message that they are awarding punitive damages not to provide the plaintiff with a windfall, but rather, to protect themselves, their families and loved ones from being harassed in the future by out-of-control employers.
PRACTICE TIP: Rhetorical questions are a good way to frame a closing argument. By asking and answering rhetorical questions, the attorney can essentially join the jurors in conversation, and, hopefully influence the conversation which will take place in deliberations. By the end of closing argument, plaintiff’s attorney should have asked and answered every possible ‘why’ question, and anticipated the defendant’s closing argument and answered questions which defense counsel will raise on argument.
Although plaintiff’s closing argument can be emotional, it is important to appeal to the jurors’ reasoning, and not give the defense attorney an opportunity to mislead the jury into believing that plaintiff’s attorney is attempting to manipulate the jurors through an appeal to emotions.
For a discussion on the preparation of a closing argument generally, see Kolczynski, Preparing for Trial in Federal Court, 2nd Edition, pp. 240-242.
In most cases the defense attorney will not be able to resist attacking the plaintiff in closing argument. If this occurs, plaintiff’s attorney will have a built-in theme for his or her rebuttal; that is, the defendant in this trial, and the defense attorney in his argument, is treating the plaintiff the same way that she was treated while she was am employee. They have attacked her. They have not accepted accountability for their actions or the actions of their supervisors, and they have basically said, “If you try to stand up to us, if you try to do what is right, we will take you on, bring you down and shut you up.”
Plaintiff’s attorney can then remake the point that, “They just don’t get it.” The reason “they don’t get it” is because they have not, as of yet, been hit in the only place where they can feel pain, that is their pocketbook.
This can then form the foundation of a punitive damage argument, or, if for some reason punitive damages are not allowed, a general damage argument.
One of the themes of rebuttal must be that the jury will now have the opportunity to right a wrong. This is a rare power and privilege. While he or she was at work, the plaintiff was not playing on a level playing field. He or she was dependent on the defendant, and, if the plaintiff broke the rules, the defendant could punish the plaintiff; however, if the defendant broke the rules, there was no viable recourse to solve the problem within the company. Thus, the plaintiff had to come into court and ask you to right this wrong and level the playing field.
Plaintiff’s attorney must remember that a trial is not like a basketball game in which the jury keeps score and the team with the most points wins. If plaintiff has tried the case properly, the trial of the sexual harassment case is much more like a morality play. The old-fashioned themes and principles upon which America was built should be utilized in a sexual harassment case, and, should play well to even conservative jurors. These themes should be reinforced in rebuttal argument. However, plaintiff has one inherent weakness in his or her case, and that is that the plaintiff has asked for a lot of money. The request for money is the most problematic part of plaintiff’s case, because, it can turn plaintiff from hero or heroine into a “greedy litigant.”
There is nothing that plaintiff or his or her attorney can do at any point of the trial, including rebuttal argument, to “solve” this problem, other than not asking for money, which is not a very good solution in most cases.
However, recognizing this problem, plaintiff’s attorney must motivate the jurors to want to award plaintiff a lot of money even though they may not want to. The key to achieving this result will be to convince the jurors that a small compensatory or punitive damage award to the plaintiff will have accomplished nothing. If a jury believes that the defendant was wrong, and if the jury wants to send the message to other companies (punitive damages), or this company (compensatory damages), that this type of sexual harassing misconduct is intolerable, the jurors must make a large award to plaintiff, because, nothing other than a large award will solve the problem.
It must be re-emphasized in rebuttal, that this should be a large award because of what defendant did, not because of what happened to the plaintiff. The focus must still be on defendant’s misconduct and not on plaintiff’s injury. As much as possible, rebuttal argument should be framed in terms of what the company did to “us — those of us who are women in the workplace. Those of us who are married to women in the workplace and have daughters in the workplace.”
PRACTICE TIP: Plaintiff’s attorney should retain the best arguments, particularly motivating arguments for rebuttal. It is rare in life that one has the opportunity to make an argument which cannot be responded to. Plaintiff’s attorney should take advantage of “having the last word,” and make sure that there are some powerful words left to argue to the jury, when it is time to make a rebuttal argument.
This article was authored by John D. Winer. Winer, Burritt & Scott, LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.