Dawn R. Solowey and Lynn A. Kappelman
BridgeTower Media Newswires
The second of two parts. Part 1 appeared in the Nov. 6, 2019, edition of the Detroit Legal News.
As trial lawyers representing employers, we have learned a great deal over time about how jurors tend to think about employment cases.
Recently, we conducted a mock jury session on behalf of a client in an employment discrimination and retaliation case. In the day-long exercise, three separate mock juries heard the exact same summaries of both parties' evidence, including video excerpts of testimony from key witnesses, and then deliberated and reached a verdict.
The results, while different in each room, raised many of the same themes that we have seen in other mock jury settings.
Part 1 of this article looked at five key takeaways from the mock juries, including that jurors empathize with long-term employees; they are wary of human resources; they want employers to follow the progressive discipline policy; they will scrutinize the plaintiff's performance and conduct; they need timelines to keep track of the facts; and they don't like hasty decisions.
Below are lessons 6 through 10 from the mock juries, as well as strategies for how employment counsel can shape a trial narrative in light of jurors' views.
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Jurors don't like hasty decisions.
Jurors do not like when they believe that an employer or manager acted too quickly. Whatever the law says, jurors prefer to see a plaintiff have multiple chances to turn around performance or make amends for misconduct.
Our mock jurors thought the company moved very quickly in deciding to terminate and were suspicious of the haste. "And then, bam - he was gone!" one juror said, prompting nods. Even defense-oriented jurors openly shared that they wished the managers had given the plaintiff more time or reflected longer before making a termination decision.
Knowing that predisposition can help inform trial strategy. Sometimes employment decisions need to happen quickly: a plaintiff's poor performance or misconduct is causing financial losses or safety issues, or affecting co-workers. Make sure that jurors clearly "get" those impacts.
If time was critical, say so and explain why. Have customers, co-workers or others testify directly about the financial, safety or morale impacts of the plaintiff's conduct. Help the jurors put themselves in the shoes of the decision-makers and not just the plaintiff.
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Hey, that's not fair!
Jurors may hear "blah, blah, blah" when the lawyers focus on the claims, defenses and legal standards. Jurors want to get down to brass tacks: What is fair?
Throughout the three sets of mock deliberations, jurors' discussions focused on whether the company's decisions seemed fair and whether the plaintiff was fair in the way he interacted with his managers. Was it fair for the plaintiff to cause the company to suffer large losses due to negligence and still expect to stay employed? Did the managers really give the plaintiff notice of the problem and an opportunity to improve? Were the managers fair in their expectations of the plaintiff? Were the plaintiff's demands of the employer reasonable? Was the ultimate decision to terminate fair in light of all the circumstances?
Knowing that that will be a focus for jurors can help frame the trial narrative. Consider using the touchstone of fairness in the opening statement and closing argument. With witnesses for the employer, explore why the managers took the actions they did and why they concluded that those actions were the right and fair ones.
A careful juror or two may do a dramatic reading of the jury charge.
While fairness is the touchstone, jurors may also review the jury instructions carefully.
In our mock jury sessions, the jurors had a copy of the charge, consistent with many judges' practice. While not all jurors focused on it in detail, a few did and then read the key language aloud to the group.
One juror then interpreted the language in his own words, saying: "This means that if there is even one iota of discrimination, we have to find for the plaintiff." The whole room stopped to re-read the section of the charge.
So it is critical to review every word of the charge carefully and object vigorously to any erroneous or prejudicial instruction in the charge conference. Maybe the most important point is to make sure that the charge is written in a way that a lay jury can easily understand.
Remember that sometimes jurors are just listening to the judge read the charge and are not rereading it themselves, so resist the urge to make it long and too complicated. If there is a key aspect of the charge on which you want jurors to focus, note it in the closing, give them a page number if you have it, and show it to them in a demonstrative.
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Liability? Damages? What?
While the charge will instruct the jurors to consider liability and damages separately, and not to consider damages at all unless they find the company liable, it does not always work that way in real-life deliberations.
We watched one of the three mock juries reason its way through the special verdict form to find no liability, realize that the plaintiff would recover nothing, and then go back and conduct a re-vote on liability so it could award some damages. Though the jurors did not really think the employer had done anything wrong, they wanted to give the plaintiff "a couple years of back pay."
Jurors may also conflate elements of damages. The mock jurors who were inclined to grant damages did not always distinguish carefully between categories of damages. Jurors said things like: "I don't think we give any emotional distress; that's included in the back wages" or "emotional distress should be about the same as the back wages," regardless of the law that would say otherwise.
Head that off at the start with effective jury selection, removing jurors who believe that any plaintiff (regardless of the merits) is entitled to at least some money, and those who are inherently more inclined to find for a plaintiff than an employer or company.
At trial, focus on making jurors comfortable that a defense verdict, with no damages, is the right and just verdict. Humanizing the managers who are the face of the employer often helps jurors see the employer not as a faceless company but as one or more individual managers who made reasonable business decisions and who don't deserve an adverse verdict.
Constructing a verdict form and jury charge that highlight the need to decide liability first and separately may also help ensure that the jury understands and values the distinction. Make clear what the different categories of damages are, and arm the jurors with strong arguments as to how to think about each category separately and where the plaintiff failed in his burden of proof on each.
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Tell the jury the why.
Jurors are not always burdened with the burdens of proof. As much as the jury instructions might say the plaintiff has the burden to show discrimination or harassment in an employment case, jurors may not care. Jurors want the employer to give a reasonable and credible explanation as to why the company terminated the plaintiff or took other adverse actions.
In all three mock juries, the deliberations focused on spirited discussion of what was the real reason behind the employer's actions. Jurors relied on their own credibility judgments and life experiences to make inferences as to the motivations behind both the plaintiff's and the managers' actions.
One juror said: "Maybe the job was just too big for him." Another offered: "I think they fired him because they didn't like him, not because of discrimination."
Offer a compelling narrative as to the legitimate business reasons for the adverse actions at issue. Arm the jurors with the specific reasons why the employer acted.
In the mock sessions, we saw the defense-leaning jurors adopt that narrative and use it to persuade fellow jurors.
Ensure that witnesses are ready to explain the employer's decision in clear, relatable and consistent terms. Consider demonstratives that will amplify the legitimate reasons. Reiterate those themes in closing so that the jury carries them into the deliberations.
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Dawn R. Solowey is senior counsel and Lynn A. Kappelman is a partner at Seyfarth Shaw in Boston.
Published: Thu, Nov 07, 2019
