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Lessons from pretrial research: The shadow of past experiences, an African-American plaintiff, and someone is going to pay

Friday, March 25, 2016
posted by Rita Handrich

man with caneIn the last year we have worked on three noteworthy (without being headline-grabbers) cases that offered experiences we wanted to share with our readers. The cases are finally all resolved, and can now be shared without violating confidentiality. They are not really cautionary tales but because the pattern emerged during three separate projects it captured our attention. What they offered were not new lessons but older ones that we saw with new eyes. And it was because these instructive juror reactions were not related to any facts in dispute.

Past experiences cast a long shadow…

The first example is one of how past experiences—even from our distant past—can influence our current behavior. This case involved alleged wrongful termination due to age discrimination. We carefully examined potential mock jurors before accepting them in the group regarding any experiences with termination that seemed unfair, and other questions about their work histories. An older White male with a cane (we’ll call him Harold) reported no such experiences and thus was accepted in the focus group panel. For those who might wonder why we would not want someone to serve in a mock trial or focus group who has had such a bad experience, the answers are simple.

First, during jury selector such a person would almost certainly be struck, either for cause or as a peremptory strike.

Secondly, we are there to listen to the wisdom of potential jurors, and such a person is likely to be consumed with his or her own difficult experience.

The third reason is that we don’t want to entrust confidential informant to someone who might potentially have a bone to pick against employers, and have them go out and violate their confidentiality agreement by discussing the case with anyone (including the opposing team).

During the introductory phase of the group, another mock juror reported having been wrongfully terminated due to jealousy, and Harold shared that he’d been injured on the job and was not rehired after recovery.

In the observation room, we quickly checked his background questionnaire and saw he had not reported this experience but were curious as to how he would respond to evidence presented.

As the case was presented he pursed his lips and shook his head and asked repeated questions as to “why” the employer required safety procedures—was it a legal requirement or something management used against employees? After several of these sorts of questions, the moderator asked Harold what he thought of the Defense responses and Harold looked at the moderator steadily for a long moment and then said, “Well, that’s what they want us to think”.

Throughout the entire presentation, Harold maintained his dour expression and shook his head. After watching deposition excerpts of the relevant witnesses, including the Plaintiff, Harold appeared grim. Reluctantly, he stated that he didn’t see age discrimination as the “only factor” and not even the “largest factor” but he figured it was “in the mix”. And when he completed the verdict form, Harold insisted on awarding money to the Plaintiff and simply repeated he knew “age was in the mix” despite there being no evidence of it.

Lesson learned: Jurors with disabilities often feel certain that there is workplace discrimination that is subtle and hard to describe. And if course, there often is. Harold over-identified with the Plaintiff (who was about his age) and was unable to shake his awareness of discrimination in general despite there being no evidence of it existing in this particular case.

An attractive, poised and well-spoken African-American plaintiff and low, low damages

Our second example came from a wrongful death case where the surviving widow/Plaintiff was a very attractive and well-spoken woman who earned among the highest scores we’ve ever seen on our witness impression forms (completed after deposition excerpts were viewed). She was beloved, for good reason.  Her spouse had died a horrible death and in such a way that the jurors were terrified something similar could happen to them. There were multiple defendants and the jurors insisted “someone had to pay”. Their anger was palpable. They spoke very highly of the Plaintiff and how she had loved her husband and how young they were with so much life ahead of them. They imbued the victim with the widow’s intelligence and poise and spoke highly of him as well.

Yet, when the time came to complete the jury charge, most of the jurors awarded damages much lower than one would expect to see in such a horrible and unnecessary death that truly could have happened to any one of those mock jurors. As they were asked to talk about their awards, the woman who awarded the lowest amount said she had really identified with the widow and felt “she was middle-class, like me. I wanted to award something I thought she could actually get rather than a lot”. As the group was polled, the highest awarding male juror (also African-American with a managerial background) commented that he was taking into account the horrible suffering of the victim and the widow’s trauma. As he described these facts submitted as evidence, several other jurors said they’d “forgotten” those facts but did not modify their awards.

Lesson learned: We still need to take special care when representing African-American plaintiffs (and ethnic minorities in general), and introduce the idea of universal values to show jurors how much “like them” is the Plaintiff. While damages were not the focus of the case presentation and no suggestions were provided for their valuation of the non-economic damages (such as pain, suffering, mental anguish, loss of consortium, etc.) the spontaneous offering was surprisingly low.

In this instance, the jurors adored the Plaintiff, but they didn’t award as much as we typically see if the Plaintiff and victim had been White. In a case like this one, where race is not salient to the case facts, we need to reinforce the idea of universal values but also consider whether to raise the flag of racial awareness so that jurors do not decrease the award as a sort of unconscious African-American penalty.

Workplace violence: Someone has to pay! 

Our third example came from a case involving a workplace death by gunshot where the Plaintiff alleged lack of care on the part of the employer and a company that supposedly conducted careful pre-employment background checks. Our mock jurors were asked standard questions about workplace violence, their opinions on background checks, and gun laws—with many of them having guns “for protection” in their homes.

During the course of the discussion, two of the participants reported having concealed carry permits (including a grandmotherly looking woman who likely had a weapon in her purse during the group).

As they listened to the story of hiring a new staff member without the requisite background check that would have shown his instability and propensity for violence, jurors were appalled at how much information was available “if only” someone had reported it. These mock jurors were also terrified that this could happen to them and needed to feel safer by punishing both Defendants.

And they did, awarding much larger amounts than in the case with the African-American plaintiff. Intriguingly, in this case the victim and the Plaintiff were White and the shooter was an African-American male with a history of violence and death threats against his own family members. In this case, racial biases and fears worked for the Plaintiff. The shooter played into stereotypes many jurors have of violence and African-American men, and their anger and fear resulted in the Plaintiff being awarded significantly higher damages.

Lesson learned: Jurors were so angry (and frightened) about this case that there was no need to stir them up more. If you read the post we linked to earlier on racial bias, you know this is another case where race is not salient—it is simply part of the tapestry of the story. However, if you are representing the Plaintiff, you would not draw attention to the race of the shooter. You simply present the facts about him and let jurors draw their own conclusions as to whether this employer did enough to keep their employees safe.

The fears many adults in this country have about violent African-American men with guns will likely factor into high awards for your client. The problem here for defendants is more complex. When this candidate was hired, they did a background check (albeit very poorly) and hired an African-American man when some employers might have racially excluded him. For them, they want to raise the race card to point out that the story has nothing to do with race, it has to do with the hidden problems of one individual employee.

We’ve been consulting on litigation for more than 20 years. And this is why we still love doing the work. Figuring out where bias lives and hides is a fascinating occupation. In all three of these cases, we were confronted with examples of bias that made us stop and think about case facts in a slightly different way.

We know, like most of you know, that bias is an ugly thing lurking under the surface of many everyday decisions. Sometimes we get to see it unmasked and when we do, it’s a good day for litigation advocacy.

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