A Reminder to Trial Lawyers -- As If We Needed It

Not only to trial lawyers, but their clients, when wondering what can happen in a jury trial, to the name OJ Simpson, you can now add Casey Anthony.

The Note From the Jury That You Didn't Want

At least if you are on the defense side: Novartis Jury Asks About 'Range' of Damages . The note comes in a sex discrimination case brought by twelve named plaintiffs againt Novartis.

Although it does indicate that the jury is beyond liability, any one who has been waiting (im)patiently in a court room while a jury deliberates, knows that it is quite difficult to tell what is going on based on just a single request.

Some of it depends on the wording of the charge. If the questions are not predicated, then a damage question may or may not mean anything on damages.

And you never know, the range they could be contemplating could be from zero to $1,000. Or not.

In any event, although not that easy to do, the basic answer is to wait and see.

Updated 4:44 p.m. CDST:  Yep, it was not a particularly good sign. According to the report from Bloomberg, Novartis Must Pay Punitive Damages in Sex-bias Case, $3.4 million for the 12 named plaintiffs. This case has a lot of procedural steps still to resolve including a punitive damage hearing which I think will be tomorrow, and a second finding of compensatory damages on behalf of the class. Where in those steps the appeal, which Novartis has already promised, comes I don't know.

Updated May 25, 2010S: A little late to the party on reporting this, but by now everyone is probably well aware that the punitive damage award was $250 million. The NYT story is here. As it notes, the company still has to deal with claims for compensatory damages from almost 6,000 class members. Bloomberg Businessweek quotes the plaintiffs' counsel as saying they believe that figure could ultimately reach close to one billion dollars.

Unlike many trials, the actual tactics and trying of this lawsuit have gotten a fair amount of attention and press, including a link to the defense counsel's final argument at the liability phase.  See for example, I’d Like Some Sex With That Drug Order, by Ann Woolner at Bloomberg.com and ‘Beyond Tone Deaf’: A Scathing Look at Novartis’s Defense Strategy, from the WSJ law blog. 


I don't have a category for multi-million dollar verdicts, and of course this is a class case, but still I think it clearly belongs in the MDV category.
 
Although it should go without saying, these are at this point verdicts, and there are still many hurdles before Novartis will be foreced to pay the first dollar to any of the named plaintiffs or class members.

"But He's an Illegal Immigrant" Argument Held Prejudicial by Texas Supreme Court

Given that President Obama turned his attention to immigration reform this week, see NYT story, it is somewhat ironic that the issue also surfaced in a more unlikely place, the Texas Supreme Court. The issue before the Court -- whether or not a jury should be informed (repeatedly) that the driver involved in a fatal collision was an illegal immigrant. The underlying suit was against his employer for negligent entrustment.

In TXI Transportation Company v. Hughes, (Tx 3.12.10) [pdf]  the Court held that such information was not only inadmissible, but was in fact prejudicial so that its admission was not harmless error and required a retrial.

The Court's holding was no doubt influenced by the fact that plaintiff had made the illegal status, and in fact the issue of illegal immigration, a central part of its trial theme.

Justice Medina wrote for the Court:

Hughes [the plaintiff] faced a difficult conceptual burden. He had to convince a jury that a collision involving on-coming traffic, that unquestionably occurred in the eastbound lane of Highway 114, was the fault of Rodriguez, the eastbound driver. The task was all the more difficult because Rodriguez possessed a clean driving record and commercial driver’s licenses from both Texas and Mexico. Hughes had some evidence of how Rodriguez might have been at fault for the collision in his lane, but the issue was hotly contested.

The record indicates that Hughes sought to hedge his theory by calling attention to Rodriguez’s illegal immigration status whenever he could....

That "hedge" including calling Rodriguez as the very first witness and the first questions were about his immigration statuts. As the Court noted that was followed by:

over forty references to Rodriguez’s status, including thirty-five to his status as an “illegal immigrant” and seven to his prior deportation.

And it was not just questions to him, TXI representatives were also cross-examined regarding whether they owed a “duty” to the public to prevent an “illegal” from driving a TXI truck:

• “Do you think he is entitled to drive here if he’s illegally here?”
• “And you don’t think you owe any duty . . . to the public . . . to the people who are driving up and down [Highway] 114 . . . to decide whether he’s illegal or not?”
•  “Mr. Rodriguez is still illegal in the United States, is he not? . . . Will anybody ever turn him in, or will he just continue to drive for TXI?”

In fact, there was a lot of evidence that was available about Rodriguez, since he:

•  was an undocumented Mexican alien who had illegally entered the United States on multiple occasions;
• invented a false Social Security number, which he used to apply for a Texas commercial driver’s license; 
• falsely answered “no” in his deposition when asked if he had ever lied to obtain a Texas driver’s license; 
• falsely answered “yes” on his TXI employment application when asked if he had the legal right to work in the United States;
• pleaded guilty to and was convicted of a misdemeanor immigration violation, serving four months in jail; and
• was previously deported and ordered not to return to the United States for ten years.

Still the Supreme Court rejected the use of such evidence both on substantive grounds and for impeachment. Under the substantive law of negligent entrustment it was not relevant, since his illegal status had not caused the collision.

By its holding that it was also improper impeachment evidence, the Court has made it a case of broader importance.

Justice Medina concluded forcefully for the eight members of the court who participated in the decision:

Such appeals to racial and ethnic prejudices, whether 'explicit and brazen' or 'veiled and subtle,' cannot be tolerated because they undermine the very basis of our judicial process.

Hard to argue with that.

Ironically, in this case the ruling bailed out an employer, but from an employment law context it is employers who are most likely to feel stymied by its reach.

Supplemental information (3.12.10): For more background information on the case itself see the AAS article about the oral argument last May. One aspect that is significant is that the underlying judgment was originally $22.4 million but was reduced to $15.8 million by the appellate court. Four members of a single family were killed in the accident.

Might Want to Ask Your Judge for a "Non-Twittering" Instruction

Amazing how technology changes life, including the life of a trial lawyer: Juror’s Twitter use in court may cause mistrial.

An off the cuff instruction:

Jurors are instructed not to blog, twitter, comment on facebook, myspace or any other social media concerning this litigation until 30 days after you are released. If you do not know what blog, twitter, facebook, myspace or social media mean, where have you been?

Probably not what you should submit, although it might be a good voir dire question!

Hat tip to Mike Ferro at Tech-Blorge. Have to love their mission statement:

We serve the global IT community.

Our mission is to provide gutsy, honest and informed coverage and comment on key technology news and issues, without fear or favor.

We want to inform, stimulate and entertain our readers. We want to provide you with a fresh, independentperspective.

Our motto is “technology with attitude”

A Helpful Case for Basic Discrimination Principles from the Texas Supreme Court

Although it is not a case that breaks new ground, today's per curiam opinion in Autozone, Inc. v. Reyes (12/5/08) [pdf] is one of those nice cases to have when writing a brief in a Texas case, as it gathers in one place the Supreme Court's view on a couple of issues that appear frequently in discrimination lawsuits: stray remarks and comparability of circumstances for determining whether disciplinary action is discriminatory.

For the latter, the Court sticks with the "nearly identical" test. For "stray remarks" the Court re-articulates a four part test that the comments must be:

1. related to the employee’s protected class,
2. close in time to the employment decision,
3. made by an individual with authority over the employment decision, and
4. related to the employment decision at issue.

The Court adds some clarification for both issues, including emphasizing that the context of the stray comments may be important.

Today's opinion is the end of the road for what started out as a million dollar jury verdict, which had been reduced to bring it within statutory caps by the trial judge and affirmed in this decision by the 13th Court of Appeals.

The case was tried in Brownsville and is a good example of a strategic issue faced by a plaintiffs' attorney in Texas. In a large number of cases, particularly South of San Antonio, plaintiffs' counsel will work very hard to ensure that the case stays in state court, including explicit disavowals in the pleadings of any federal claim and adding individual defendants to destroy diversity. While state court procedures and juries may seem more hospitable to plaintiffs, the ultimate backdrop in Texas is review by the Texas Supreme Court which has shown it is not adverse to reversing jury verdicts. At a minimum it makes for interesting dynamics in settlement discussions.

But I Didn't Stay a Word -- Case Still Dismissed

Now that major filings in two FLSA collective actions were made on successive Fridays, and SXSW has finally rolled out of town, maybe posting can return on a semi-regular basis.

And what better place to start with a reminder of why this job is never dull.

In an administrative proceeding under the whistle-blower provision of the Energy Reorganization Act, James F. Newport was appearing pro se. On a March 1, 2006 conference call, in response to complaints by counsel representing the respondent, the Administrative Law Judge "learned that Newport had threatened witnesses and counsel. He ordered Newport, who was pro se, not to threaten anyone again, and Newport agreed to refrain from doing so."

Three weeks later at the hearing, on the third day of testimony:

Newport encountered Manny Misas, an FPL employee and witness at the hearing, in a hallway of the courthouse. The ALJ was told that Newport gestured toward Misas by drawing his finger across his own throat as if slashing Misas's throat.

And Newport conceded that he did, but that the gesture was misunderstood.

Following a renewed motion for sanction after the close of the hearing, the ALJ dismissed Newport's claim, finding it a direct violation of his order and an "exemplary basis for the sanction of dismissal. "

In Newport v. Florida Power & Light Co., ARB No. 06-110, ALJ No. 2005-ERA-24 (ARB Feb. 29, 2008), the Administrative Review Board agreed.

For those of us who have dealt with pro se plaintiffs over the years, Newport's other grounds for challenge to the dismissal at the ARB will sound all too familiar. He was "was denied due process, prejudiced by the unethical conduct of opposing counsel, and denied his right to free speech."

And while the result is also familiar, dismissal affirmed, there is no getting around the problems (and expense) that can be caused when a plaintiff either chooses or can not find counsel to represent them.

Of course, not all pro se representations turn out so bad, just look at today's headline: Mills Awarded $48.6M From McCartney.

Update: Just to prove the point no sooner than I had posted, I read this from a pro se plaintiff's complaint against a law firm that he alleged conspired with his former employer in keeping him from filing a discrimination claim. According to him:

Defendants abused their position of attorneys and held back the agreed-upon settlement to coerce plaintiff to sign the agreement, causing plaintiff to defraud his own self. Plaintiff signed the agreement and returned it, as this proves that the fraud reached its full fruition or justifiable reliance, damaging plaintiff even further.

See Morgan Lewis Faces Fraud Claim in Employment Case in today's 360 Employment Law ($). Yep, yet another get him to "defraud his own self" case!

"Me Too Evidence" - A Do Over

What could have been one of the more important cases actually impacting employment law trials in this Supreme Court term was just handed down with what may appear to be a disappointing thud.

The issue was one that comes up frequently -- so called "me too" evidence about discrimination occurring to employees other than the particular plaintiff. If such evidence is admissible it is a boon for plaintiffs; exclusion is a winner for employers.

Here's the end game of Justice Thomas' opinion for a unanimous Court:

The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how —————— closely related the evidence is to the plaintiff’s circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry. Because Rules 401 and 403 do not make such evidence per se admissible or per se inadmissible, and because the inquiry required by those Rules is within the province of the District Court in the first instance, we vacate the judgment of the Court ofAppeals and remand the case with instructions to have the District Court clarify the basis for its evidentiary ruling under the applicable Rules.

Sprint United Management Co. v. Mendelsohn (S.Ct 2/26/08) [pdf].

In other words -- the equivalent of a judicial mulligan.

Spinning it (irony intended) another way, although it will depend on the particular judge, for those appearing in front of judges who are concerned about trials spilling out of control, which includes most federal judges, the fact that the Supreme Court today emphasized the discretionary nature of the ruling should favor employers.

Sound Advice on Handling Lawsuits

Although not directly related to labor and employment law, the thoughts of Stewart Weltman in a column in law.com's In House Counsel forum, Think Like a Plaintiffs Attorney to Lower Litigation Costs, are spot on.

Almost every point he makes is one I have come to understand over 30 plus years of handling employment law suits of various sizes, from small to big.

You really should read the article to get his take on things but here's the big picture:

• Prepare every case as if it was going to trial, that's the most certain way to get it settled favorably;
• Don't waste your time (and money) fighting over little things; and more things than you think are little things;
• Don't get involved in discovery disputes, but bend over backwards to provide all documents that are within the discovery requests of the other party;
• Use fewer, but more experienced lawyers; make sure that your trial lawyer knows the facts of the case well;
• The earlier you settle a weak case the better;
• Keep your "story" simple, and know what it is early on

Although he doesn't say it quite this way, have trial lawyers on your side, not "litigators."

Some Helpful Evidentiary Rulings For Your Next Trial

Because appeals so rarely turn on evidentiary points, it is not infrequent to have a situation where the answer is obvious, but it's hard to find a case where a court actually said it. One that comes up frequently in employment cases is testimony by a decision maker about what he or she has been told by others. The inevitable objection is hearsay.

Going back to Evidence 101, hearsay is "an out of court statement offered for the truth of the matter asserted." It's frequently the second point that is the key to admissibility, and was in Maday v. Public Libraries of Saginaw (6th Cir. 3/28/07). But it's a point some judges seem to forget in the heat of the battle.

You got a hint of where the opinion was going from the Court's topic heading — Admission of Alleged Hearsay Evidence:

In particular, Maday points to parts of Marcy Warner’s testimony on cross-examination, when she was asked by defense counsel why she had taken disciplinary action against Maday. At one point during her testimony, Warner recounted comments she had heard from several third parties about Maday, involving both Maday’s poor interactions with Library patrons and coworkers as well as Maday’s volatile reactions to some of the discipline she received. Warner also testified that she heard from people present when Curtis had suspended Maday in February 2003, that Maday had stormed out of the office and threatened to jump off a bridge. Maday’s counsel objected to this line of questioning on hearsay grounds, but these objections were overruled by the district judge, who noted that the statements were not being offered for their truth.

The district judge also had dealt with plaintiff's counsel's objections under Rule 404 and 404(b):

I don’t believe that [is] a sensible objection. Rule 404 prevents character evidence to prove conduct under limited circumstances, Rule 404(b) allows other acts to show things other than character. This evidence is offered for neither of those purposes, it’s to show the reason why the employer took the action it did in accordance with its progressive discipline policy which means something had to happen earlier.

One other area where you can never have too much authority is the relevance of evidence to counter plaintiff's mental anguish damage. After offering a portion of a social worker's record to show mental anguish, plaintiff objected when the employer offered other parts of the records:

The admitted record to which Maday particularly objects included the following notation by the social worker:

Claimant is unhappy with her attorney who told her he didn’t want to be used as a tool for her revenge. He wanted claimant to settle out of court, but claimant said they had not discussed it before.

When asked by the district court why she wanted this record admitted, [the] defense attorney stated:

[I]t’s been our contention all along . . . there are things going on in [Maday’s] life that are causing her depression other than what happened at work. One of the things is the fact that her attorney is telling her he’s not going to be used as a tool for her.

She’s depressed, it makes reference to her mood, and we’re entitled to explore and argue anything that would have impact on her mood.

The district court agreed, noting:

I believe the comment relating to the attorney is probative. There may be some damaging inferences that could be drawn, but I don’t find that the unfair prejudice is substantially outweighed by the probative value, especially given the fact that reaction to her attorney and her effort to pursue a claim against the library may be an alternate cause of her emotional state as opposed to the events that occurred when she was employed there, or arising out of her termination. The claim is that the plaintiff was terminated on account of her age and that termination gave rise to a state of—an emotional state that is compensable. This document suggests there might be some alternate source of her distress and, consequently, its relevance is manifest, and . . . not unfairly prejudicial.

You can tell from the opinion that this was not a case where things went well for plaintiff's counsel. In addition to losing on those two points, the other appellate point was a complaint about the conduct of the employer's lawyer, primarily comments (and facial expressions) directed to and about him.

That didn't work either, the Court somewhat adding insult to injury by saying that while defense counsel's "actions may have flirted with impropriety, but [probably] her demeanor and tactics negatively influenced her own client’s case as much as they might have Maday’s.”

In effect — if what you describe happened, it should have helped your case not hurt it, but you still lost. The bottom line: "[Plaintiff] received a fair trial before a jury and lost. Accordingly, we affirm."

And the final grain of salt in plaintiff's counsel's wound is simply reflected here:

Argued: March 13, 2007
Decided and Filed: March 28, 2007