By Aaron Vehling, Law360, New York, October 27, 2015
Employees making scandalous sexual harassment or discrimination claims against their employers must be able to make a case that gets the jury to care about the bias they faced.
Workplace Title VII cases centering on shocking claims against an employer — such as the allegations of groping and grabbing, homophobic slurs and racial epithets at the center of a recent suit against staffing firm Labor Ready MidAtlantic Inc. — can pose challenges to plaintiffs’ attorneys looking to get a jury on their side.
However, good strategies centered on the idea of fairness can go a long way toward getting a jury to see a case from a worker’s perspective, according to Carla D. Brown, a partner at Charlson Bredehoft Cohen & Brown PC and a member of the executive board of the National Employment Lawyers Association.
“Remember that what is happening to your client is much more significant than the loss of just
their employment,” Brown said. “Make sure the jury understands it is an issue for the greater good — for them, for their families, for their neighbors — that our workers be able to perform their jobs well without discriminatory interference.”
Yesterday we tackled what attorneys defending employers should do to win over the jury. Here we take a look at the other perspective with experts sharing tips on how to keep the jury on the worker’s side:
Be Relatable and Show Measured Emotion
A key ingredient to getting the jury on your side is ensuring the worker is not just a name on some court documents, Brown said.
“Humanize your plaintiff,” Brown said. “They are not greedy—They are asking for what the law allows because our legal system says it can only be money.”
Linda M. Correia of Correia & Pluth PLLC said it is also important to avoid arguments with defense attorneys that can backfire.
“If things get heated we don’t want our client to be arguing with the lawyer if the lawyer is unfairly badgering them,” she said.
It’s fine for a client to show emotion on the stand, but letting it get out of control can impede the jury’s absorption of the facts, according to Jenny Schwartz of Outten & Golden LLP.
“… You have to convey to the jury the extreme emotional distress and anguish the incident caused the client, but at the same time the client should convey that in an objective way to get across to jury how horrible it was for [the client],” she said.
A worker’s experience enduring egregious behavior — such as “quid pro quo harassment,” which occurs when an employee’s boss offers or hints at some kind of work benefit in return for sexual favors — needs to be presented so the jurors can take it in within the context of their own life experience, Schwartz said.
Prep Witnesses for Sensitive Testimony
Preparation is key to reach the point where the jury sees a worker as both a human who experienced inappropriate behavior and an objective promulgator of evidence.
Good pretrial preparation ensures that on the stand the client will be able to keep his or her cool if the defense does lay it on thick, according to Schwartz.
“Make sure the witness is prepared for everything coming their way,” Schwartz said. A worker needs to know what kinds of questions will be asked and how they can behave on the stand. The worker should feel empowered while testifying to ask the judge for a minute to collect himself if he needs it, she said.
It’s also good to identify any potential wrenches the defense could throw in the works, such as evidence that presumably would undercut the worker’s credibility or performance, according to Brown.
“Be upfront about potential weaknesses and tackle them head on before the other side surprises the jury with them,” Brown said.
For example, a worker could have gone to lunch with the harasser for a period of time, before the harassment started. The employer’s witnesses could claim the worker sat next to the harasser at a sporting event or happy hour and they could have seemed to be on friendly terms, Brown said.
“If that actually happened, you want the jury to hear plaintiff’s explanation for that before the defense raises it,” Brown said.
For Brown, preparation also involves bringing the worker in on every part of the litigation, from the initial meeting to having the client review discovery, trial exhibits and pretrial motions.
This way, there are no alarms and no surprises, she said.
“Plaintiffs are better when they did not have to ‘cram’ to get ready for litigation,” Brown said.
Find a Jury That Cares
It is critical to find jurors who are open to giving a worker a fair hearing of his or her scandalous claims in the first place.
A plaintiff’s attorney needs to look for jurors who have compassion and the ability to empathize with a victim’s situation, regardless of politics or life experience, Schwartz said. People who are likely to compartmentalize factual allegations are to be avoided, she added.
Brown says that finding out key facts about a potential juror, such as their status as an employer or employee, is a way to determine how they will react to a worker’s case. She also mentioned that details from their life, such as the details of their social media, can reveal the way a juror will approach a worker’s claims.
Reveal the Bullies
In Correia’s experience representing men and women who have brought Title VII claims, there is, more often than not, bullying from the employer’s attorneys in some way.
“The way to handle bullying from the other side is to call them on it,” she said.
Attempts to discredit a plaintiff or otherwise portray him or her in an undesirable light can end up backfiring on the defense and helping the plaintiff’s side.
“I welcome cases where employers attack the victim,” Brown said.
She recalled a recent case in which an employer’s attorney used a worker’s beauty as a way of trying to poke holes in her sexual harassment claims.
The attorney said things like “you wanted to make sure you looked great every day” and then cited the worker’s medical records to bully her about getting some cosmetic enhancements, Brown said.
“Juries don’t respond very well to that,” Brown said.
Brown also pointed to a trial in which an employer’s attorney tried to characterize a woman as being “really wild” and too attractive — or, as Brown put it, “too female.”
She countered that by showing the jury the employer was “revictimizing” the victim, she said.
It also helps to embrace the serious allegations at hand. Correia says her firm’s advice to clients is to “always tell the truth, and we’re right and they’re wrong.”
“Juries understand very well the misuse of power,” she said.
Read the Law360 article here.