Strategies for Litigating Sexual Harassment. Richelle Lyon, M.A.

Transcription

1 Strategies for Litigating Sexual Harassment Richelle Lyon, M.A. President & Senior Consultant Los Angeles Legal Strategy Copyright 2012 by Los Angeles Legal Strategy

2 Contents Juror Attitudes... 3 Juror Questions... 3 Jury Selection Challenges... 4 Jury Selection Three-Step Formula... 5 Juror Profiles... 6 Punitive Jurors... 6 Management Experience... 7 Women... 7 Men... 7 Plaintiff s Juror Profile... 8 Characteristics... 8 Experiences... 9 Attitudes/Beliefs... 9 Plaintiff s Highest-Risk Jurors Defense Juror Profile Characteristics Experiences Attitudes/Beliefs Defense Highest-Risk Jurors Voir Dire Disclosing Experiences with Sexual Harassment Disclosing Attitudes About Plaintiff in Sexual Harassment Cases Voir Dire Questions General Questions Copyright 2012 by Los Angeles Legal Strategy Page 1

3 Sexual Harassment Questions Business Knowledge Questions Arguing Damages Trial Themes Plaintiff Themes Vicarious Liability Defense Themes Plaintiff Witnesses Witness Credibility Order of Witnesses Psychotherapist Expert Sexual Harassment Expert Plaintiff Defense Witnesses Witness Credibility Order of Witnesses Psychotherapist Expert Copyright 2012 by Los Angeles Legal Strategy Page 2

4 Juror Attitudes Jurors share many common biases about sexual harassment litigation. Following are some of the most common, as demonstrated through post-trial interviews, privately-funded mock trial research and academic research Over time, the notion that sexual harassment is more about power than sex has permeated the culture. But jurors will want to know how both parties used their power before and during the lawsuit. Did the plaintiff do everything possible to discourage, report or stop the behavior? Did the defendant take advantage of a powerful position by committing the behavior or attempting to cover up complaints? 2. When prospective jurors work for companies that have sexual harassment policies, they will use their knowledge of these policies as a litmus test and put the company s policies, and execution of those policies, on trial. 3. Women tend to accept a wider range of behavior as sexually harassing than men 2 but may also subscribe to the belief that the plaintiff did something to encourage or provoke the unwanted behavior, or failed to do enough to discourage it in the first place Plaintiffs who have a history of making complaints (any type) are likely to be negatively evaluated by jurors as overly-sensitive whiners. 5. Defendants who have a history of receiving complaints (any type) are likely to be negatively evaluated by jurors as abusers of power or bullies. This is especially true when various individuals have filed similar complaints against the same defendant. 6. Jurors tend to rely on their own common-sense interpretation of the facts before relying on expert witness testimony. This is especially true in areas of the case where jurors have personal experience, such as in the workplace dealing with inappropriate behavior (any type) or with sexual harassment training. 7. Women who are sued for sexual harassment against men are more likely to be found liable than men who are accused of sexual harassment against women When a case of sexual harassment involves the same gender, all jurors consider the behavior to be of greater severity, offense and inappropriateness than in cross-gender allegations 5. Juror Questions Following is a list of some of the most common juror questions in sexual harassment cases. 1. How severe was the alleged sexually harassing behavior? 2. Are there witnesses who can support or corroborate the plaintiff s claims or the defendant s denials? Copyright 2012 by Los Angeles Legal Strategy Page 3

5 3. What evidence exists (e.g., documents) to support either side s claims? 4. Did the plaintiff give notice to the employer before filing legal charges? 5. How did the employer react to the plaintiff s claims? What action was taken by the employer at the time of the complaint, and afterwards? 6. What type of employment does the plaintiff have now? 7. What is the plaintiff s current psychological condition? 8. Was anyone else allegedly victimized by the same type of harassment at the company? According to Karen Lisko (2010) empirical research reviewing judicial decisions (which are often highly correlated with jury verdicts) has shown that the following five questions are almost 100% significant in determining whether or not a plaintiff will prevail in sexual harassment cases [See Terpstra, D.E. & Baker, D.D. (1992). Outcomes of federal court decisions on sexual harassment. Academy of Management Journal, 35, ) 6 1. Did the plaintiff do anything to encourage the sexual attention by the defendant? 2. Did the plaintiff do everything in his/her power to stop the allegedly harassing behavior? 3. Did the plaintiff suffer serious psychological harm due to the sexual problems prior to his/her encounter(s) with the alleged harasser? 4. How frequently did the alleged harassment occur and over what period of time? 5. Did the defendant company retaliate against the plaintiff for making complaints? Jury Selection Challenges It typically takes about twice as many prospective jurors for jury selection in sexual harassment cases as compared to other types of employment cases, because most people have lots of real world experience in the workplace, have received at least some training on sexual harassment, and have been exposed to national coverage of sexual harassment cases. Consequently, there are lots of experts in the jury pool, and strong views about sexual harassment. Prospective jurors are also likely to have experience with sexual harassment either directly (as the target or the accused) or indirectly (as a witness of sexual harassment in one form or another), or due to a personal relationship with someone who has made a claim of sexual harassment. They are especially prone to second-guessing each party s decision-making process, and if and how it adversely affected the plaintiff, yet they are often reluctant to admit to personal experiences and views in open court. That is why written questionnaires are crucial. Questionnaires allow jurors to privately identify their experiences and attitudes, and help the attorneys on both sides identify which jurors hold strong beliefs that must be explored during oral voir dire. Copyright 2012 by Los Angeles Legal Strategy Page 4

6 Only two areas have proven to be valid for jury selection across all sexual harassment: 1. Cynicism with regard to male behavior, which is defined by the extent to which it is believed that males act in an unfaithful, unreliable or contemptible manner within romantic relationships. The most predictive juror characteristic of high damage awards is a strong endorsement of the statement, Most married men cheat on their wives. 2. Judgments jurors hold of high-profile sexual harassment cases from the past. Attitudes toward other sexual harassment cases is the best predictor of judgments of current cases. Common challenges of jury selection include: 1. Understanding exactly what constitutes the greatest source of negative or positive bias in a specific case, and how each side is affected 2. Knowing how to ask questions that educe honest, meaningful responses from the jury panel 3. Creating and applying a systematic formula to delineate high risk jurors and intelligent strikes 4. Developing a comprehensive and effective strategy for winning cause challenges (and blocking the other side s) 5. Exercise peremptory strikes under extreme time pressures 6. Designing an effective supplemental juror questionnaire that is approved by both sides, gaining judicial acceptance of it and utilizing it effectively 7. Choosing a second person to sit at counsel table to keep track of prospective jurors hand votes and responses and/or help with overall strategy Jury Selection Three-Step Formula Use the following steps to create a juror profiles specific to your case. Always try to uncover as many risky life experiences and demographics as possible by listening to prospective jurors rationale for their attitudes (and analyzing written responses to juror questionnaires). Always complete the exercise for both sides of the case. Open-ended questions promote longer responses, and provide more clues about possible bias. When using a written questionnaire, it s always desirable to keep it as brief as possible. But be sure to include some open-ended questions because it will not only reveal clues about bias, it will also tell a lot about reading comprehension, literacy and attention to detail. 1. Step One: Create two lists (one for each side) of the riskiest juror attitudes, experiences, beliefs and demographic characteristics. If budget allows, conduct pretrial research (a mock trial or focus group) and/or hire a consultant to work with the specific elements of the case. At minimum, seek out existing research on the relevant subject matter and adapt it to the case. 2. Step Two: Edit each list to the few attitudes, beliefs and experiences that need to be identified during jury selection and questions for obtaining that information through oral voir dire (and/or a written questionnaire). 3. Step Three: Design questions to elicit comprehensive responses from both the group and individual jurors (not just one or the other) because alternating tends to maximize the quantity Copyright 2012 by Los Angeles Legal Strategy Page 5

7 and the quality of the responses, especially in a time-limited situation. It also tends to minimize prospective jurors boredom and shyness. Group questions should seek to broadly identify prospective jurors who hold attitudes harmful to the case, and be designed with distinct, clear, even extreme choices, so that the minority of jurors who agree (or disagree) is clearly identified. Design individual follow-up questions to elicit personal biases. Consider practicing reading the questions aloud because the difference when reading a written question and answering an oral one isn t always obvious. Juror Profiles Gender may play a role in views of sexual harassment, but the evidence and jurors life experiences, attitudes and deeply held beliefs are always more predictive than demographics. Jurors in sexual harassment cases tend to look for hard evidence" that substantiates the plaintiff s claims especially when there are no witnesses. Jurors also look for proof that the plaintiff took reasonable steps to report the undesired behavior and to minimize his or her own harm. Since sexual harassment litigation is almost always a case of he said, she said it is essential to identify prospective jurors who will have a particularly difficult time believing each side s witnesses (i.e., negative attitudes toward corporate executives or mental health professionals, etc.). It s also important to identify underlying attitudes prospective jurors have about employers duty to protect employees, and to what extent a company should be punished when it fails to show care or concern toward its employees. Special attention should be paid to determining which jurors have strong opinions about the importance of employers protecting employees from perpetrators and prospective perpetrators. The primary focus of these jurors is always the defendant s misconduct (not the victimization of the plaintiff). Both sides of the case will want to identify jurors willing to express anger at the defendant by awarding large punitive damages. Punitive Jurors In general, when creating a profile of the ideal juror for a sexual harassment case, concentrate on EITHER liability or damages not both simultaneously because different characteristics apply. From the plaintiff s perspective, a case involving sexual harassment should concentrate on damages, because research has shown that jurors who are initially against liability can be persuaded to assign it, as long as damages aren t too astronomical. On the other hand, jurors who are resolutely against damages will also be against liability. Therefore, the focus of jury selection needs to be on finding jurors who are willing to punish the offender, not necessarily ones who simply empathize with the plaintiff. Look for punitive jurors based on the following criteria (Adapted from the ALI-ABA Course of Study Materials entitled, Choosing the Jury: Do s and Don ts for Voir Dire and Jury Selection, by Daniel R. Gallipeau, Ph.D.) Punitive jurors typically have: 1. Experienced some type of Occupational Trauma including family/close friends): termination, fear or threats of being terminated, or fear or threats of being reassigned or transferred to another position. Copyright 2012 by Los Angeles Legal Strategy Page 6

8 2. Experienced Life Trauma such as events like death, chronic illness, divorce or separation. Follow up with jurors who disclose that they have experienced a traumatic life event to determine what type of loss it was, and how it might impact their view of the plaintiff s loss. Note that defense counsel may try to humanize the defendant by introducing the idea of loss suffered by the defendant, such as being wrongfully accused or other negative consequences, as a result of the plaintiff s allegation (including loss of time, finances, well-being or personal integrity.) 3. Feelings of Generalized Hostility. These individuals feel that life is passing them by, or that they played by the rules and it is not paying off. 4. Feelings of a Lack of Control Over Their Destiny or feeling that they have little control over their lives. These jurors prefer government regulation and feel that they cannot protect themselves and punishment is a viable means of modifying behavior. 5. A High Degree of Empathy, such as school teachers, nurses, social workers, mental health providers, or professionals within the humanities curriculum or individuals affiliated with volunteer or religious institutions that serve the disadvantaged. These jurors want to see the plaintiff compensated for pain and don t think about or care where the money comes from. Management Experience Prospective jurors with previous or current management experience and responsibilities (i.e., those who have experience terminating and/or disciplining employees), may be plaintiff or defense oriented, depending on a constellation of factors. At the same time, it is always important to look at jurors with management experience because they tend to become leaders in the jury room. Nowhere is this more important than in a case that involves employment issues. Look at the following factors when attempting to determine a prospective jurors case orientation: The type of workplace, whether the workplace environment supports sexual harassment training and reporting, the extent of training provided on sexual harassment, whether the prospective juror conducts training on sexual harassment, and his/her familiarity with employee handbooks on sexual harassment. Women Women are more likely to believe the plaintiff as compared to men 7. This may be especially true when there are no witnesses to the alleged sexually harassing behavior, although this does not necessarily translate to more sympathy for the plaintiff s plight or a higher incidence of awarding damages. Middle-aged or older women have a tendency to reject the plaintiff's claims of damage due to a hostile work environment because of having needed to deal alone with their own personal experiences. Men Men in management (especially single men) are likely to personalize the issue, and have negative (e.g., defensive) views of the plaintiff for bringing sexual harassment claims. Single men who work in industries which may be more tolerant of sexual harassment (such as construction or the restaurant industry) may be less accepting of the plaintiff s claims. However, single men who work for large corporations and have received sexual harassment training, who follow that training and who understand the subtleties of the workplace, may be good plaintiffs' jurors. Single men with girlfriends in the workplace will probably be good plaintiffs' jurors. Copyright 2012 by Los Angeles Legal Strategy Page 7

9 Men with spouses in the workplace, and fathers with working daughters, are by far the best jurors from the plaintiff point of view because they rely upon companies to keep their family members safe, and can become very angry at companies that do not protect vulnerable workers. Plaintiff s Juror Profile Characteristics The following characteristics are associated with plaintiff-oriented jurors in sexual harassment cases. For the most accurate juror profile for your case, work with a trial consultant and the specific fact pattern of your case. 1. Emotional rather than cognitive/intellectual 2. Little authority or status, socio-economically 3. Less educated, or overeducated but underemployed 4. Disenfranchised/anti-establishment/marginalized ( fringe ) 5. Laid-off employee, unemployed or has never been employed 6. Professional who relies on own judgment as opposed to a manager (i.e., nurse, teacher, social worker) 7. Identify themselves as politically liberal 8. Urban, rather than rural 9. Young women (will relate to the plaintiff on various levels) because they ve been steeped in education about sexual harassment and rape, and are likely to believe that both happen often and are mainly about an abuse of power and a majority of college-aged women report having experienced sexual harassment 10. Men with female family members, especially daughters in the workplace 11. Younger, single men with girlfriends in the workplace who have been raised with awareness of sexual harassment and will want to protect loved one 12. Young women who ve served (are serving) in the military because around 90% report having experienced sexual harassment themselves, and some studies show that up to 30% claim they ve been raped 13. Government workers will fault the Defendant for not having policies/procedures in place and understand that, as a result, Defendant has no right to an affirmative defense 14. Union members (lower ranking) may be a natural ally of the Plaintiff, and open to arguments of abuse of power and coercion since the purpose of a union is to equalize the inherent imbalance of power that exists in the workplace in favor of management BUT be aware of older males in positions of leadership within unions who may identify with the defendant 15. Gay men Copyright 2012 by Los Angeles Legal Strategy Page 8

10 Experiences The following life experiences are associated with plaintiff-oriented jurors in sexual harassment cases. For the most accurate juror profile for your case, work with a trial consultant and the specific fact pattern of your case. 1. Recent personal hardships or life stressors 2. Suffered a serious financial or personal loss 3. May have fairly scattered educational and/or job histories 4. May have changed careers a few times 5. Started college, but never graduated 6. Under-employed or stuck in a job lower than what they aspired to 7. Entry-level employees; Can imagine what it would feel like to be victimized 8. Work in an environment that supports employee reporting 9. Corporate employees (excluding high-level executives); Want to compensate plaintiff for experiences they will never have to experience due to safety net of corporate policies 10. Employment discrimination, especially if they have filed charges of discrimination/harassment OR felt harassed or victimized by employment discrimination but too intimidated or fearful to report it or been the victim of discrimination in social, educational, or other settings 11. Someone close to them was sexually harassed or sexually abused 12. Military/government employees who are accustomed to following rules and regulations and will wonder why this company had none - especially younger women who expect or have experienced redress Attitudes/Beliefs The following attitudes and beliefs are associated with plaintiff-oriented jurors in sexual harassment cases. For the most accurate juror profile for your case, work with a trial consultant and the specific fact pattern of your case. 1. External locus of control (i.e., victims/blamers) 2. Believe their place in life is directed by luck or fate 3. Naïve/trusting 4. Strong sense of loyalty 5. Disgruntled/chip on shoulder/angry or depressed 6. Feel mistreated by the system 7. Believes s/he has been treated unfairly at work 8. Have not often felt stable or protected 9. Feel scared and vulnerable due to a lack of protections and safeguards Copyright 2012 by Los Angeles Legal Strategy Page 9

11 10. View themselves as victims of employer injustice 11. Resents/does not trust big business and management 12. Tend to substitute their own judgment over a manager s 13. Believe that management is overpaid and employees are underpaid 14. Distrust company executives and believe they will lie 15. Want to punish employers, generally, for their own employment experiences 16. Want to reward employees who have suffered adverse consequences 17. Feel anger at employers for not doing everything they can to protect employees 18. Will treat (even subconsciously) serving on this jury as an opportunity to seek redress 19. View the alleged harasser as self-serving 20. Inability to view the alleged behavior as an isolated incident Plaintiff s Highest-Risk Jurors Beware of defense-oriented jurors who are likely to dissect the plaintiff s behavior, and hold him/her to a very high standard of personal responsibility for initiating, perpetuating, and failing to stop the alleged sexually harassing behavior. For the most accurate juror profile for your case, work with a trial consultant and the specific fact pattern of your case. Jurors who present the highest risk to the plaintiff: Focus on personal responsibility and believe in a plaintiff s power to control and prevent sexual harassment Has risen above many of life s obstacles (or is close to someone who has) Has a high internal locus of control (believes that many of life s events are within an individual s control) Believes people are often overly-sensitive about harmless teasing/behavior Believes that a woman can send out a signal or dress in a way that invites sexual harassment Is anti-litigation Has a strong need for hard evidence of a plaintiff s claims Identifies with management Has been accused of sexual harassment or is close to someone who has been Works in a profession prone to malpractice risk Copyright 2012 by Los Angeles Legal Strategy Page 10

12 Defense Juror Profile The following characteristics are associated with defense-oriented jurors in sexual harassment cases. For the most accurate juror profile for your case, work with a trial consultant and the specific fact pattern of your case. Characteristics 1. Analytic rather than emotional/intuitive 2. Have authority or status, socio-economically 3. Higher income 4. Few life stressors 5. Business owners, employers, have owned or operated a business (or someone very close to them has) 6. Personal similarities to defendant 7. Older male 8. Older female manager/executive (has had to fend for herself) 9. Mainstream, conservative 10. More rural, than urban 11. Subscribes/reads Sports Illustrated Experiences The following life experiences are associated with defense-oriented jurors in sexual harassment cases. For the most accurate juror profile for your case, work with a trial consultant and the specific fact pattern of your case. 1. Previously served on a jury 2. Men who ve served in the military (may have been accused of sexual harassment) 3. Charged with discrimination/harassment 4. Accused of retaliation Attitudes/Beliefs The following attitudes and beliefs are associated with defense-oriented jurors in sexual harassment cases. For the most accurate juror profile for your case, work with a trial consultant and the specific fact pattern of your case. 1. Internal locus of control (takes personal responsibility/control) 2. Believes that everyone is responsible for his/her own problems 3. Tends to accept management s decisions 4. Believes workplace dynamics are complex Copyright 2012 by Los Angeles Legal Strategy Page 11

13 5. Believes an employer s role in regulating workplace conduct is complicated 6. Believes in limiting employer liability even if sexual harassment actually occurred 7. Believes too many lawsuits are filed 8. Believes verdicts are too large 9. Believes plaintiffs and plaintiffs lawyers are greedy Defense Highest-Risk Jurors Beware of plaintiff-oriented jurors who are likely to identify with the plaintiff AND want to punish the defendant by awarding high damages. These jurors will be sympathetic by nature, and view legal cases through a values filter that evaluates each party s actions for its ethics. For the most accurate juror profile for your case, work with a trial consultant and the specific fact pattern of your case. Jurors who present the highest risk to the plaintiff: Believe that is very unlikely anyone would lie in court about something as serious as sexual harassment Believe that the plaintiff s perception of the alleged behavior are the standard by which to judge the case. Has an external locus of control (sees the individual as often powerless to control external events) Has been seriously injured by another s actions and/or previously sued someone Considers themselves to be politically liberal Has no consistent, long-term pattern of employment Employed in the humanities, maternal Believes in negative stereotypes about corporations (especially the type of the defendant company) Believes that management often overlooks bad behavior or tries to cover it up Believes that a corporate executive would say anything necessary, including a lie, to protect the company Has never held a management position (and is not close to anyone who does) Has filed a complaint that was never (or inadequately) addressed Union member or strong supporter of unions Unemployed Litigation-tolerant Has filed a worker s compensation claim Welfare recipient Copyright 2012 by Los Angeles Legal Strategy Page 12

14 Voir Dire The questions asked during oral voir dire will depend on whether a written questionnaire was used, and the scope of the questionnaire. Following are questions that cover attitudes about sexual harassment cases, plaintiffs who bring sexual harassment lawsuits, employers duty to protect and train about sexual harassment, and business. For the most effective voir dire, work with a trial consultant and the specific fact pattern of your case. Disclosing Experiences with Sexual Harassment All trials involve education of the jury, but changing jurors attitudes about sexual harassment is extraordinarily difficult because almost everyone has personal experience in the workplace, and people tend to bring strong opinions based on that experience. Many people also have experience with sexual harassment training, or have read about high-profile sexual harassment cases in the news. Some prospective jurors will have been the victim of sexual harassment (or someone close to them has been) or in rare cases they may have even been accused of committing sexual harassment against someone else. The latter case is the most perilous because while a victim may feel comfortable about disclosing their experience of being harassed in open court, a perpetrator may not especially if no lawsuit was involved. This is another reason that written questionnaires are especially useful in sexual harassment cases. Not only do questionnaires allow for the disclosure of sensitive information of attitudes about sex and sexual harassment, they help to ensure disclosure by perpetrators since they are signing a court document, in private, that carries the penalty of perjury. Disclosing Attitudes About Plaintiff in Sexual Harassment Cases The next hurdle is detecting jurors prior formulation of strong beliefs or attitudes against plaintiffs who bring sexual harassment cases. This is different from the typical need to shape negative attitudes toward lawsuits, plaintiffs and plaintiffs' attorneys, because there are very few people who have actually joined, or donate money to, tort reform organizations. During oral voir dire, one of the best ways to encourage openness about opinions and beliefs related to sexual harassment is to ask about well-known cases that have received a high level of publicity. It is always helpful to stay knowledgeable about current sexual harassment cases in the media because jurors are often affected by these reports in ways that they do not recognize. For example, a fairly recent case of a six-year-old boy who was suspended from school for kissing a girl caused many people to have intense negative feelings against the development of sexual harassment cases. The presence or absence of sexual harassment cases immediately prior to jury selection, and their outcome, can affect prospective jurors perception of how common or isolated sexual harassment is in the workplace, how appropriately it is resolved, and how often false reports are filed. Discussing this type of "hot" media issue is an excellent jumping off point for developing a rapport during voir dire. From the plaintiff s perspective, look for defense-oriented jurors who will cling to a theory of selfreliance or personal responsibility, and who believe that it is the employee s responsibility to mitigate damages, rather than the employer s duty to protect its employees. Capitalize on the fact that most jurors are more likely to comfortably stand in the shoes of the plaintiff than to have familiarity with the supervisory role of a manager, human resources director, or other corporate decision-maker. (Statistically, the percentage of management-level prospective jurors is far smaller than employees ) Copyright 2012 by Los Angeles Legal Strategy Page 13

15 From the defense perspective, look for plaintiff-leaning jurors who are unwilling to separate the conduct of a harassing employee from the company, and who believe that companies (the big guy ) have a duty to protect employees ( the little guy ). Typically this means union members, government workers, college students, and those who identify themselves as politically liberal. Ask questions that will uncover beliefs about a company s duty to be loyal and protective, to fulfill a family or personal need, and to be more than just a business. One example is individuals who have worked for a long period of time for a medium to large-sized company, who have been exposed to sexual harassment training, and who have developed the expectation over time that employees deserve to be protected. Voir Dire Questions General Questions 1. During deliberations, how do you think it will feel to listen to other people s opinions and ideas, after you have started to form your own? How important is it to stand your ground when you feel strongly about an issue? 2. If you found out that a majority of your fellow jurors had a different opinion about this case after considering all of the evidence, how important would it be for you to go along with the majority? 3. Would you prefer, for any reason, not to sit on this case? Sexual Harassment Questions 1. Do you know anybody who claims that they ve been sexually harassed? A. Is it someone who is (or was) close to you? What is your relationship with her (or him)? B. What do you know about her/his experience? What did s/he do about it? C. How did s/he feel about the outcome of the situation/case? D. How did the situation change your feelings about sexual harassment? 2. Do you know anybody who has been accused of sexual harassment? A. Is it someone who is (or was) close to you? What is your relationship with her (or him)? B. What information did you learn about their case? C. What happened to him or her? Do you know what the outcome was? D. What feelings did the situation cause you to have about sexual harassment? 3. What are your feelings in general about sexual harassment cases? A. Can you recall any sexual harassment case that has recently been in the news? B. What do you remember about that case? C. What were your feelings about the case? D. What are your general feelings about sexual harassment lawsuits? 4. How often do you think people lie about sexual harassment? 5. There are no actual witnesses to the sexual harassment in this case. A. What do you think about having to decide a case where you have to believe the word of one person over another, without any hard evidence? Copyright 2012 by Los Angeles Legal Strategy Page 14

16 6. What training have you received in the area of sexual harassment? A. Please describe your training. What details do you remember about the training? B. Is it a good or bad thing that your company has training on sexual harassment? Why? C. Is it a good or bad thing that your company does not have training on sexual harassment? Why? 7. 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? C. Did you ever report it to anyone? D. What was the outcome? Were you satisfied with the outcome? 8. What do you think your first reaction would be if you felt sexually harassed? A. Would you feel like you could handle it by yourself? Or would you immediately seek help? B. Would you report it to your supervisor? Human resources? Not report it to your employer for fear of retaliation? 9. What if you were being sexually harassed and no matter what you tried to do to stop it, nothing changed? A. Would you stay in the job? Why or why not? B. What do you think about someone who stayed? C. What do you think about someone who quits and then files a lawsuit? 10. Would you have any hesitation about bringing a lawsuit if you were sexually harassed? A. Would you bring a lawsuit? Why or why not? 11. What are your feelings about people who bring sexual harassment lawsuits? 12. When you hear about a sexual harassment case, do you identify more with the alleged victim or the alleged perpetrator? 13. How often do you think that people are wrongly accused of sexual harassment? 14. How important is prevention of sexual harassment, rather than waiting for a situation to arise? A. What specifically do you think a company should do to prevent sexual harassment? B. What specifically do you think a company should do about sexual harassment, once it s been alleged? 15. What do you believe the company that you work for would do in response to a report of sexual harassment? A. Do you know about any sexual harassment claims at places where you have worked? B. What was the nature of the claim? C. How was it handled by your company? D. What was the outcome of the case? What are your feelings about it? Copyright 2012 by Los Angeles Legal Strategy Page 15

17 16. What are your feelings about an employee s duty to mitigate their own damages? A. If an employee is feeling sexually harassed, what are the reasonable steps they should take? B. How soon should the victim use the company resources that are available? C. When should filing a lawsuit be considered? 17. What are your feelings about people who come into court asking for money damages for sexual harassment? A. Do you think that a court of law is the appropriate place to handle these claims? Or, should these cases should be handled in other ways? B. Do you have feelings one way or another about a person who asks for money in a case like this? 18. What are your feelings about large verdicts in sexual harassment cases? 19. What are your feelings about punitive damages? A. In your opinion, what is the purpose of punitive damages in lawsuits? B. 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? Business Knowledge Questions 1. How much do you trust companies to do the right thing? 2. How much do you trust business executives to tell the truth during a trial? 3. How much responsibility do you think companies have to protect employees in the workplace? 4. (Depending on if a written questionnaire was used or not) ask about: A. The nature of the business at which they are employed and the number of employees B. Their self-perceived status and stability in the workplace, including their level and type of supervisory and hiring/firing experience C. Whether sexual harassment training is done, and their understanding of how and why sexual harassment training is done D. Whether they ve ever received training in sexual harassment, or conducted that training E. Their understanding of the company s decision-making system about workplace complaints and their perception of the availability of any reporting structure for sexual harassment or perceived discrimination, and their company s response to those types of claims Arguing Damages Since the largest verdicts in sexual harassment cases almost always evolve from jurors anger at the defendant (not just an identification with the plaintiff), it is important to look for those jurors who are the most likely to want to send a message to ALL employers that they must protect vulnerable workers and/or to a defendant who deserves to be punished and needs to be deterred from committing similar acts in the future. Copyright 2012 by Los Angeles Legal Strategy Page 16

18 According to the National Center for State Courts (2001), jurors award punitive damages in 16% of all product liability cases, compared to 4% of all civil cases. Jurors are most convinced to award punitive damages when convinced that the company failed to exercise reasonable care to prevent and promptly correct any sexually harassing behavior. Jurors prefer clear formulas to determine damages, and dislike being presented with an extreme total amount without a breakdown of the calculations underneath. Jurors want to understand the good an award will do and how it will help the plaintiff. Jurors like formulas, even for non-economic damages. When no formula or viable suggestion for one is available, jurors often create their own during deliberations. Don t take the chance that the formula jurors invent will be one that works against your side. Even when instructed against it, jurors frequently average or compromise damages as part of a group effort to reach consensus. Plaintiff s counsel may be tempted to increase the damages number, but make sure it is backed up by the evidence presented so that jurors don t suspect the legitimacy of the entire case. Research confirms that a high damages demand can make the plaintiff look greedy but also results in an increase in the likelihood of a higher damages award. Remember that jurors often use plaintiffs damages number as an upper limit starting point and negotiate down during deliberations. The theory of anchoring bias concludes that jurors (and judges) may decrease damages when presented with a lower, alternative figure 8. From the plaintiff s perspective, it is often beneficial to present damages as consistent with the theme of fairness. The reality of this case is that a lot of money is involved, but that money is needed (or well-deserved). From the defense perspective, be aware that some jurors will be open to arguments that an unlimited, excessive amount of money is likely to make little or no difference. From the plaintiff s perspective this means: 1. Providing jurors with the basis for understanding when it is appropriate to award punitive damages. 2. Advising jurors about the types of damages available to the Plaintiff and how, in our civil justice system, money provides the only means of redress and punishment. 3. Considering the degree of reprehensibility of the Defendants conduct and the actual harm inflicted on the Plaintiff. 4. Considering if the facts indicate that the same harasser has prior complaints of sexual misconduct or sexual harassment and using this to point to the company s failure to address the prior complaints. 5. Investigating whether the defendant has taken any intervening actions as a result of this case, including education or adoption of new policies that show remediation. If none has been taken, it will affect the jury s impression about whether the corporation was or is sensitive to following the law and protecting employees by providing them with a means of filing and investigating complaints. Copyright 2012 by Los Angeles Legal Strategy Page 17

19 From the defense perspective this means: 1. Providing jurors with the basis for understanding when it is unnecessary or even inappropriate to award punitive damages. 2. Advising jurors about the particulars of the case. that if liability is assigned, about the types of damages available to the Plaintiff and how, in our civil justice system, money provides the only means of redress and punishment. 3. Considering the degree of reprehensibility of the Defendants conduct and the actual harm inflicted on the Plaintiff. 4. Considering if the facts indicate that the same harasser has prior complaints of sexual misconduct or sexual harassment and using this to point to the company s failure to address the prior complaints. 5. Investigating whether the defendant has taken any intervening actions as a result of this case, including education or adoption of new policies that show remediation. If none has been taken, it will affect the jury s impression about whether the corporation was or is sensitive to following the law and protecting employees by providing them with a means of filing and investigating complaints. Trial Themes Jurors always try to organize case facts by creating a logical story that fits the evidence they deem important and relevant. 9 It is essential to provide jurors with a coherent, rational and compelling story or they will make up their own and it may or may not represent what actually happened. They will then take their preferred story (either the one provided or the one they have invented) and reenact it in the jury room as a means of persuading other jurors. Jurors are also always interested in the motives of both parties. Why would the plaintiff make these allegations? Plaintiff Themes The strongest plaintiff s themes demonstrate that the company was not a safe place for the plaintiff to work, and that s/he had no option but to file legal charges. The plaintiff s motives regarding the lawsuit are just as invested in making sure that no one else suffers as they are in being personally compensated. For the most effective trial themes, work with a consultant and the specific fact pattern of your case. 1. Plaintiff s attorney should go into factual detail in the opening statement without too much focus on the plaintiff s actions or damages before a jury is motivated to care. If possible, present corroborating testimony about the alleged behavior and the defendant's failure to respond before hearing from the plaintiff. 2. When talking about the plaintiff, refer to positive choices s/he made. Never start by blaming the defendant, because it can turn off jurors receptivity to your arguments. 3. Remember that perceptions of sexual harassment are subjective. Provide as much proof through demonstratives, documents, s, and witnesses as possible. Copyright 2012 by Los Angeles Legal Strategy Page 18

20 4. When there is a claim of psychological injury, the plaintiff's psyche should be explained to the jurors by an expert FIRST, before the plaintiff is sliced apart on cross-examination, and has to explain everything. Maintain the focus on the defendant s misconduct NOT the plaintiff s mental disorder. 5. Show reasonableness by admitting safe fault where possible. Jurors do not like parties who try to represent themselves as completely blameless. 6. Be prepared for defense-oriented jurors desire for self-reliance and personal accountability. If the defense makes the argument that the plaintiff had a duty to file a formal complaint with the company (or a similar argument about the timing of any complaint(s), flip it around by demonstrating that the company demonstrated a lack of responsibility by failing to put sufficient policies or procedures in place, responding to the complaint, or taking appropriate action, etc. Vicarious Liability When Vicarious Liability 1 is an issue in the case, the plaintiff must point to: 1. A hostile environment created by a supervisor with immediate authority over the plaintiff 2. An employer who was responsible for directing the corporation/company s business, and was instrumental in the company s failure to carry out their duties and responsibilities regarding the plaintiff s employment 3. An employer who DID NOT exercise reasonable care to prevent and promptly correct any sexually harassing behavior 4. A Plaintiff who DID NOT unreasonably fail to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise (because no sufficient process was in place). Defense Themes The strongest defense themes emphasize everything the defense did well and the unfairness of being in the position of defending a lawsuit when insufficient options were given to act earlier. The bottom line is that the jury must be convinced that the company was a safe place to work and especially a safe place for any employee to raise concerns or make a complaint. This will diffuse anger toward the company so that even if liability is assigned, damage awards will be minimal. For the most effective trial themes, work with a consultant and the specific fact pattern of your case. 1. Defendant companies in sexual harassment cases are always challenged by the decision to create distance or alignment with the alleged harasser. Distance will be seen by the jury as evidence that the charges are true. Alignment carries a risk that when the defendant is viewed negatively by the jury, the company will be painted with the same brush. Meet this challenge by proactively admitting fault wherever possible. Admit to poor judgment, but argue that that does not necessarily rise to the legal standard of sexual harassment. Make sure that defense oriented jurors have the specific language that is needed, as it relates to the legal charges, to argue your side in the jury room. 1 Supreme Court: Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellert Copyright 2012 by Los Angeles Legal Strategy Page 19

21 2. Avoid denigrating the plaintiff because a black and white picture could force the jury to take sides against you. 3. The defense should demonstrate how the employer complied with the duty to maintain a work environment free of sexual harassment. Concentrate on what the positive ways the company used its power, for example by disciplining the alleged harasser or by setting procedures and policies in place to attempt to prevent the behavior. 4. The defense should demonstrate that the employer is presenting an accurate picture of the training and complaint procedures of the company, and an accurate representation of the work environment. 5. The defense should attempt to avoid liability by utilizing the Right to an affirmative defense against the hostile work environment claims by demonstrating: a. They used reasonable care to prevent and correct any harassment (e.g., a sexual harassment policy containing a complaint procedure of which employees were aware); b. The employee unreasonably failed to make a complaint under the policy or failed to avoid harm otherwise. 6. It may be a better strategy to allow the plaintiff to believe his/her claims and argue that s/he is mistaken about the intent of the alleged harasser s behavior. It can be hard to convince an entire jury panel that a plaintiff has completely invented all of the claims. It can be easier to demonstrate that the plaintiff is simply mistaken in his/her interpretation of the events. 7. The defense should attempt to appeal to jurors who value self-reliance and personal accountability. 8. The defense should demonstrate that the Plaintiff did not take responsibility for trying to stop the harassment from escalating, or give the company a chance to investigate or take corrective action. 9. The defense can still show compassion and feel remorse for the plaintiff s situation even while disagreeing with his/her interpretation of the events, and whether or not the alleged behavior rises to the legal standard of sexual harassment. 10. Consider within the context of the specifics facts of the case how the defense can express having learned more about this issue as a result of this case, and the belief that as a result they will be more alert and sensitive to the issue, without admitting outright liability. 11. When damaging documents or s exist, it is best to air the dirty laundry. De-emphasizing this type of evidence almost never works in favor of the defense, but to have greater certainty about the impact of a specific piece of evidence work with a trial consultant to conduct pretrial research on jury-eligible citizens from the trial venue. 12. Don t forget to personalize the company by presenting corporate witnesses who will demonstrate a human quality and/or shock and discomfort upon learning about the charges and specific information about the immediate consequences of the behavior. Copyright 2012 by Los Angeles Legal Strategy Page 20

22 Plaintiff Witnesses Witness Credibility In cases of sexual harassment, where hard evidence and eyewitness testimony is often lacking, witness credibility is particularly important. Exceedingly high or low levels of witness credibility have a great impact. When the plaintiff s testimony is seen as highly believable and/or the defendant is perceived as callous, evasive, unresponsive or dishonest, a jury is more likely to overlook this need. Particularly in cases where there is a lack of hard evidence, jurors find the perceived mental health of the parties to be a highly discriminating factor. Which of the parties do jurors judge as more psychologically abnormal? Personality problems tend to be more excusable in the Plaintiff than in a Defendant especially if the Defendant has displayed inappropriate behavior in the past. For the most effective witness testimony, work with a trial consultant to prepare key witnesses. Order of Witnesses Many sexual harassment cases are won or lost based upon the testimony of prior victims or witnesses of the perpetrator s behavior. From the plaintiff s perspective, it is important to demonstrate to the jury that the defendant has a history of acting inappropriately, and that current and future employees must be protected from harassment. Any prior victims of the perpetrator should be the first witnesses, and emphasis should be placed on their cries for help (if any) which were ignored. Although jurors will be anxious to hear directly from the plaintiff, the attorney should provide most of the key information about each party s conduct, and the plaintiff s harm, through the testimony of other witnesses before the plaintiff testifies. The plaintiff should always be the last, or one of the last, persons to testify because the key to a large verdict in any sexual harassment case is jurors anger at the defendant employer. The order of witnesses should be planned to maximize this result. Psychotherapist Expert When the decision is made to call a psychological expert, s/he should generally testify before the plaintiff to explain why the plaintiff was so seriously psychologically disabled, and that the plaintiff was not a seriously disordered person before the incident. Plaintiff s Advantages of Using an Expert Psychotherapist 1. To explain the plaintiff's behavior. A psychotherapist can answer questions about when and why a plaintiff quit and how the plaintiff behaved during employment (i.e. what s/he did or did not to resist or report the harassment), and how s/he reacted after. In most cases, there is a psychological explanation to these very important questions. 2. To explain the inherent power differential that exists between employers and employees, and the subtle psychological forces in the workplace. This may serve as not only an explanation for the plaintiff s behavior, but also a rationale for how sexual harassment occurs and why it must be stopped. Copyright 2012 by Los Angeles Legal Strategy Page 21