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Prosecuting A Race Discrimination Case Successfully for Plaintiffs

ACBA LABOR AND EMPLOYMENT SECTION, ACBA, CHBA AND CABL

  1. Evaluation of the Case

Race discrimination cases can be notoriously challenging to prosecute. Successful prosecution of a race discrimination requires corroboration of your client’s contention that he or she was discriminated based on race.  If there is race-based harassment or comments or writings indicating a discriminatory mind-set, this can facilitate a finding of discrimination as well.  In evaluating whether to take the case on, everything should be evaluated to determine if this is a case you are likely to win at trial and decisions along the way should be made by asking the question, “how is this going to look to a jury?”

It is important to speak with corroborating witnesses as early as possible and prepare accurate and thorough Declarations.  Review documents including email.  Evaluate how your client will come across to a jury.  Test the reasons for termination.  Did the client engage in significant misconduct?   Were comparable employees of a different race terminated for similar conduct?  Are there performance reviews which show your client was a competent or even better employee.    Always try to look at the facts through the prism of a potential jury.  Will the client come across as a diligent, hard-working employee who is generally likable? Are they honest even if they have made mistakes?  Do they express themselves in writing in a compelling, sympathetic way or will a jury find their way of communicating problematic?  All of this is contextual, depending on what would be expected of a reasonable employee in the particular industry or workplace. 

Race discrimination or harassment cases sometimes involve the use of offensive racial epithets, offensive objects like nooses or discriminatory writings, but more often the discrimination is subtle. More commonly, there is a difference in treatment, trust or job benefits.  Implicit bias and stereotypes can result in pay disparity, loss of promotions, unfair discipline, or wrongful terminations.  All of this should be examined in the initial interview. However, to give you and your client the best chance to prevail, corroborating witnesses are key.   If these are not immediately available, corroborating documents or video can justify proceeding with the case.  Is there some pattern or practice of discrimination against, for example, African-American employees? A client’s subjective belief that he or she was discriminated against is not enough. 

It is helpful to make sure that your client has communicated his or her concerns in writing and pursuant to company policy especially when still employed.  Even if recently terminated, the client can send correspondence to the company explaining any harassment and why the termination decision is unwarranted and discriminatory.  Clients should resist, if they can, any decision to quit and, instead, if they are unable to work, they should seek legally available medical leaves.

  1. Pursue Discovery Vigorously      

        It is important to propound discovery at the earliest possible opportunity and strategize as to what in particular you need to prove your case in addition to the usual Requests for Production of Documents.   Requests for Admission can be an early way to flesh out all contentions of the Defendants or you may just want to obtain the documents and take depositions.   In any event, it is key to review responses timely, meet and confer and file motions to compel when necessary.

                Most defense counsel will voluntarily turn over the employer’s investigation into your client’s complaint of discrimination or harassment because a company’s investigation and appropriate corrective action is a defense to co-worker harassment and can limit your client’s liability if the harasser is a supervisor.  Nonetheless, there are times when defendants will try to hide documents which pertain the investigation and, in those instances, you can be sure that something valuable is contained in those documents.  Moreover, it is crucial to carefully review any documents you receive and rigorously depose all witnesses to make sure that the defense is not merely providing you with self-serving documents while concealing witness statements or other documentary evidence which can be helpful to your case.

           Once you have met and conferred and relevant documents are not forthcoming, California law strongly supports compelling the production of all documents pertaining to the corporate defendant’s investigations into allegations of discrimination and harassment.  A common roadblock placed by defendants is to claim that the investigation was conducted by an attorney and, thus, protected by the attorney-client privilege.  However, In Wellpoint Health Networks, Inc. v. Superior Court, (1997) 59 Cal.App.4th 110, 129, the California Supreme Court stated “if defendants’ answer or discovery responses indicate the possibility of a defense based on thorough investigation and appropriate corrective response, … a finding of waiver [of the attorney-client privilege can] be made.” 

                So long as your client complained of the harassment, the company is under an obligation to investigate and take appropriate corrective action based on the fact that California Government Code Section 12940(j)(1) states, in relevant part: “(h)arassment of an employee, … shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”  Accordingly, its hard to imagine a scenario where the employer will not claim that it investigated and responded appropriately once a complaint is made.

In fact,  “[t]he FEHA makes it a separate unlawful employment practice for an employer to ‘fail to take all reasonable steps to prevent discrimination and harassment from occurring.’”  State Department of Health Services v. Superior Court, (2003) 31 Cal.4th 1026, 1040. (citing Government Code § 12940(k)).  Thus, all documents pertaining to the investigation of complaints of harassment and discrimination should be relevant to show whether the employer took reasonable steps to prevent discrimination and harassment, which necessarily will include a reasonable policy of investigation and taking corrective action in response to such complaints.

Similarly, while an employer is strictly liable for hostile environment sexual harassment by a supervisor, the employer can proffer the “avoidable consequences” defense to decrease damages if the employee failed to report the harassment.  However, “it reduces those damages only if, taking into account of the employer’s anti-harassment policies and procedures and its past record of acting on harassment complaints, the employee acted unreasonably in not sooner reporting the harassment to the employer.”   State Department of Health Services, supra, 31 Cal.4th at 1049.

Using this theory, you can not only obtain all documents pertaining to the investigation of your client’s complaints, you can also compel the production of documents pertaining to the investigations of other complaints of harassment or discrimination.  In State Department of Health Services, supra, 31 Cal.4th at 1045-46, the California Supreme Court emphasized, “Evidence potentially relevant to the avoidable consequences defense includes anything tending to show that the employer took effective steps ‘to encourage victims to come forward with complaints of unwelcome sexual conduct and to respond effectively to their complaints.  . . . ‘[I]f an employer has failed to investigate harassment complaints, [or] act on findings of harassment, or, worse still, [has] retaliated against complainants, future victims will have a strong argument that the policy and grievance procedure did not provide a ‘reasonable avenue’ for their complaints. [emphasis added]”    

                Additionally, Cotran v. Rollins Hudig Hall International  (1998) 17 Cal.4th 93 allows Plaintiff’s Attorneys to obtain the investigation into allegations that your client engaged in misconduct justifying termination.  In Cotran, the California Supreme Court held: “[w]e give operative meaning to the term ‘good cause’ in the context of implied employment contracts by defining it, … , as fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs, or pretextual.  A reasoned conclusion, in short, supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.” [emphasis added]”  If an employer must show that it reasonably investigated any claim that your client did something wrong justifying termination or disciplinary action, then all documents pertaining to the investigation are relevant and any claim of privilege should be waived. 

                In addition to seeking all documents pertaining to the investigation of complaints of harassment and discrimination based on the relevance to the company’s anti-discrimination policies, it is also useful to demonstrate other reasons why these documents are relevant.  

Oftentimes it is helpful to remind the Court just what is at stake in these types of cases.  Pursuant to California Government Code Section 12921, “[t]he opportunity to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, marital status, sex, age, or sexual orientation is hereby recognized and declared to be a civil right. [emphasis added]”  

When a plaintiff files an employment discrimination suit, “the charging party is a `private attorney general’ whose role in enforcing the ban on discrimination is parallel to that of the Commission itself.”  E.E.O.C. v. Dry Goods Corp. (1981) 449 U.S. 590, 602.

In Equal Employment Opportunity Commission v. Recruit U.S.A., Inc., (9th Cir. 1991) 939 F.2d 746, 756 , the Court rejected a company’s attempt to confine disclosure of employment records to those of the individuals named in the charge of discrimination.  The Court approved a Sixth Circuit decision in which it was noted that: “the existence of patterns of racial discrimination in job classifications or hiring situations other than those of the complainants may well justify an inference that the practices complained of here were motivated by racial factors.”

The Ninth Circuit, in EEOC v. Recruit USA, emphasized, “The scope of relevancy, for purposes of the EEOC’s investigatory powers, is quite broad.  The Supreme Court noted that `since the enactment of Title VII, courts have generously construed the term `relevant’ and have afforded the Commission access to virtually any material that might cast light on allegations against the employer.'” Id. at 756.

These federal decisions are persuasive authority in state court judges because, “the Court stated that “[t]he objectives of the FEHA and Title VII of the Federal Civil Rights Act (42 U.S.C. Sec. 2000e et seq.) are identical and California courts have relied upon federal law to interpret analogous provisions of the state statute.” Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 997-998.

If the Court is convinced of the righteousness of your case, the balancing test involved in any assertions of privacy rights of those involved in previous complaints tips strongly in the favor of the relevance of the information to your case.  California Courts have held that evidence of a discriminatory mind-set which is revealed by the employer’s discriminatory treatment of others is admissible to demonstrate that an individual employee was discriminated against.  Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 667.   

                In Clark, a discharged Professor alleged his denial of tenure was motivated by race discrimination even though the discriminatory comments were made by supervisory individuals who did not participate in the ultimate decision to deny tenure.  The Court for the Second Appellate District held that such comments were admissible to prove that a race-based mind-set existed within Claremont University.  The Court stated, “an individual employment decision should not be treated as a `watertight compartment, with discriminatory statements in the course of one decision somehow sealed off from (that is, irrelevant to) every other decision.  In the real world … human beings (including triers of fact) are not compelled to reason that way.  If an employer discloses a … race-based mindset, it is certainly a permissible inference that the mindset is not focused solely on the individual employee to whom or about whom the specific statement was made.”  Id. at 667.[1]

Evidence of an employer’s conduct against other employees tending to demonstrate hostility towards a certain group is both relevant and admissible in an employment discrimination case.  In Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475, 1479, the Court stated “[r]ecognizing that `[t]here will seldom be `eyewitness’ testimony as to the employers mental process,’  the United States Supreme Court held that evidence of the employer’s discriminatory attitude in general is relevant to prove race discrimination.”  … The Eighth Circuit, … likewise found that “evidence of prior acts of discrimination is relevant to an employer’s motive in discharging a plaintiff. ”

                The Heyne’s Court also emphasized, “that statistical evidence tending to show that … [an employer] discriminated against Blacks in hiring and promotion, evidence of prior acts of discriminations against black customers, and evidence of a … manager telling racist jokes … were relevant to proving the employer’s motivation behind discharging [the Plaintiff].  Heyne v. Caruso, supra 69 F.3d at 1480.  

                In Olympic Club v. Superior Court (1991) 229 Cal.App.3d 358, 363-64. the Court held that names and addresses of witnesses to illegal race discrimination were discoverable.  The Court balanced the witnesses privacy interest with the interest of litigation and stated, “this action is not ordinary civil litigation.  The [Unruh] Act codifies fundamental principles of society. … [There is a] strong public policy to eradicate racial discrimination.”    Of course, FEHA’s  declaration that it is a civil right to be free from harassment or discrimination in the work place is equally compelling. 

Employers must not be permitted to hide the identity of employees who may have relevant information about your client’s claims.  As the Court of Appeal emphasized in City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65, 76-77, “[t]he legitimate interest and purposes of discovery are generally amply protected by the requirement that an adverse party is entitled to the identity and location of all persons with knowledge of relevant facts…. Its basis is that persons who have relevant knowledge are not to be considered the witnesses of any particular party to the litigation. Ensuring the availability of all parties to the right to contact and to take depositions of these witnesses provides adequate safeguards against surprise of false testimony.

                This should include “me too” witnesses who have complained about discrimination or harassment by the employer.  In Johnson v. UCP, 173 Cal.App.4th 740 (2013), the Court stated, in a pregnancy discrimination case where several women alleged they were either harassed or terminated when they became pregnant, “[h]ere we can say as a matter of law that the “me too” evidence presented by the plaintiff in the instant case is per se admissible under both relevance and Evidence Code section 352 standards.” 

  1. Defeating Summary Judgment

        Most times, Plaintiff’s lawyers will face summary judgment motions especially in discrimination cases.   In opposing the motion, it is important to be able to tell a compelling story through the deposition testimony of your client, the defense and third party witnesses. Let the Court know what facts are disputed so it can conclude that this is a case that needs to go to trial to be decided.

     Emphasizing California cases which emphasize the different ways in which summary judgment can be defeated in employment cases is critical.  “Many employment cases present issues of intent and motive, and hostile working environment, issues not determinable on paper. Such cases…, are rarely appropriate for disposition on summary judgment, however liberalized it be.” Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286  

                Discrimination occurs when “[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin.” Mixon v. Fair employment and Housing Com. (1987) 192 Cal.App.3d 1306, 1317. A failure to follow company policies is evidence of the employer’s discriminatory motive.  Earl v. Nielsen Media Research, Inc. (9th Cir. 2011) 658 F.3d 1108, 1117. Evidence of discriminatory mind-set sufficient to sustain verdict in favor of Plaintiff.   Clark v. Claremont University, (1992) 6 Cal. App. 4th 639, 667

                 “[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042. The Supreme Court of California held that “an employee is not required to use legal terms or buzzwords when opposing discrimination. The court will find opposing activity if the employee’s comments, when read in their totality, oppose discrimination.” (Id. at 1047 (internal citations omitted.))

                “The causal link may be established by an inference derived from circumstantial evidence, “such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69

                Where an employer relies on a showing of nondiscriminatory reasons for the discharge, the employer first has a burden of presenting evidence of “such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination.” Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097–1098. In determining whether this burden is met, the Court must “view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing her evidence while strictly scrutinizing defendant’s.” Id. at 1098.

                “[D]iscriminatory motive…can in some situations be inferred from the mere fact of differences in treatment.” International Broth. of Teamsters v. U.S. (1977) 431 U.S. 324, 335.) “In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.” Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 134.) An employer’s failure to interview witnesses for potentially exculpatory information evidences pretext.” Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 280. “Proof that the employer’s proffered reasons are unworthy of credence may “considerably assist” a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons.  Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 361.

                The elements of a hostile work environment are: (1) Plaintiff belongs to a protected group (2) Plaintiff was subjected to unwelcomed harassment (3) the harassment complaint of was based on a protected characteristic and (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608

                The Ninth Circuit has recognized that “[r]acially motivated comments or actions may appear innocent or only mildly offensive to one who is not a member of the targeted group, but in reality be intolerably abusive or threatening when understood from the perspective of a plaintiff who is a member of the targeted group.” McGinest v. GTE Service Corp. (9th Cir. 2004) 360 F.3d 1103, 1116

  1. Trial starts with Jury Selection

                Under California law, party’s can request a mini-opening which is a great way to get  jurors talking so that you can discern who is biased against your client or who would be unlikely to provide fair compensation.  It is important to bring out any troubling issues in the mini-opening so you can see which potential jurors are likely to react badly or judge your client harshly as a result.   A neutral statement giving the facts while letting the jury know that you will be seeking substantial compensation for things like emotional distress or asking for punitive damages is key to testing whether any jurors are opposed to those concepts of compensation and damages.  

                I tend to script out my voir dire with complete questions that are thought-provoking and will get the jurors talking.    Then I break it down into a one page outline that I keep close to me to make sure I hit on all the themes.   One good ice breaker to get jurors talking is to ask who want to be here?  Who want to serve on this jury?  We emphasize that that we want a fair juror and ask the jurors to be brutally honest.  Ask what people thought of the mini openings.  Does it cause anyone to lean more towards the defendants.  

                Other themes include rules in the workplace, especially where you believe it was the defendants who broke the rules.  Do people think there are too many rules or do rules promote fairness.   Do people think discrimination still exists in the workplace?  Do the jurors have personal experience with discrimination?    Ask about #blacklivesmatter.   If a juror reacts negatively, that is not a juror you want on your jury.

                Most cases involve circumstantial evidence and you can explore if jurors can appreciate and credit both.   If you don’t have racial epithets, explore themes like hidden or implicit bias, stereotypes, or how others can be influenced by people who do discriminate.

                If my client is testifying at or close to the end of the case which is usually how we do it, get the jury to commit to waiting to hear all the evidence and to wait until hearing from your client before making up their mind.

            Its also important to explore jurors attitudes on frivolous lawsuits and juxtapose that with our system of justice holding wrongdoers accountable.   If time permits, explore the jurors opinions on lawyers and our judicial system.  Is the courtroom and the right to a jury trial the great equalizer or a waste of time and resources.

         Its critical to ask jurors how they feel about awarding compensation for physical pain and emotional distress.   See if jurors have limits and then empower them.  Is there anybody here who could not award millions of dollars if the evidence warranted it? It’s a lot of power, juries have the power to award compensation, and when its fair, in the millions of dollars, is anyone uncomfortable with that power?

                Other questions to ask is to identify who holds leadership positions, who are rule followers and who believes they possess an innate ability to tell who is lying, like a lie detector test.   The latter may not be a juror you want on your jury.

                Good Plaintiff jurors are intelligent, compassionate, diverse jurors who do not reveal a defense bias through the voir dire process.  By stimulating conversation in voir dire, you can hopefully identify jurors who will work well with others in the jury room while at the same time identify jurors who exhibit clear bias against your client or case.  

Its important to evaluate each potential juror as an individual, a human being, and not dismiss a juror because of preconceived notions of what groups would be favorable.   That being said, if Defense rapidly excuses an African American juror, make a Batson objection immediately to hopefully achieve a representative, diverse jury.  

The best voir dire is where jurors come away from the process knowing that the Plaintiff’s Lawyer has integrity, is a good listener, and will put his client’s case on in an honest, trustworthy manner.

  1. Opening Statement

An effective opening statement often starts by introducing the corporate defendant and explaining what rules apply in this case.   In this way, you reach consensus with all jurors who should agree with the rules and the protection they provide.   For example, Defendant is a corporation who did not follow the rules and tolerated a culture of discrimination and harassment.

Introduce key witnesses who will establish that the Defendant broke the rules and what evidence shows the Defendant did not follow its own rules when it terminated the Plaintiff.   You can then pivot and humanize your Plaintiff.  Now, let me tell you a little bit about Ms. Plaintiff.  Emphasize how hard she had to work to get that job and how dedicated she is to the job. Talk a little about her family if appropriate. If your client had good job performance evaluations, let the jury know they will see that evidence.  Let the jury know how much the job meant to your client to preview damages.

Then, its important to tell the jury a compelling story of the harassment and discrimination that your client was subjected to.  Introduce the witnesses at trial who will support those claims.   Get Stipulations on introduction of evidence and show key exhibits that support your case.   But most importantly, tell a story, let the jury know what really happened in this case and how your client was impacted.

Next, explain to the jury what the likely defense will contend the evidence will show and how they are wrong about that.   If there are accusations against your client, explain how they are unfair and untrue.  Connect the dots between those who displayed racial animus and the decision makers who terminated your client.  Explain how there is a pattern and practice of discrimination if you can establish those facts. 

Address mitigation of damages issues or other affirmative defenses.  If there are bad facts make sure you share them with the jury in your opening and discuss why they are not as important as other evidence in the case. 

Explaining your client’s harm is critically important in the opening statement.  It is important to identify every area in which the termination impacted your client.   Let the jury know that the damages in this case are substantial.  Unfortunately, it is not within their power to take away what has happened to Ms. Plaintiff, to restore her to the job and its pay and benefits.   By having spent time with your client, you should be able to convey to the jury how devastating the termination, harassment or other adverse employment action was to your client. 

 You want to finish your opening with a call to action.  We are going to ask you to hold Defendants accountable for terminating Ms. Plaintiff when it knew that she was the victim of ongoing discrimination and harassment.  And, by holding them accountable, we will ask you to have the Defendants compensate Ms. Plaintiff for the harms and damages she has suffered as a result of her co- workers and supervisors’ discrimination, harassment and retaliation and Defendants’ termination of Ms. Plaintiff. 

  1. The Witnesses

Its important to identify the first few witnesses who can establish your case.  Sandwiching corroborating coworkers between the cross examination of defense witnesses can be an effective strategy.   Using the deposition testimony to anchor leading, close ended questions to defense witnesses is also effective.   Have video testimony ready to impeach where the trial testimony deviates.  Its also important to tell your client’s story through the questioning.   By taking the jury through your contentions of what occurred, the jury will hopefully not believe testimony which contradicts the evidence or seems contrived, even if the defense witnesses do not agree with your leading questions.

Use expert witnesses where necessary but don’t overuse them.  Its important to keep your case as simple as possible.  Hopefully, you can establish rules violations through the defendants Human Resource witnesses eliminating the need for a human resources expert.   Ultimately, you want the jury to rely on common sense in evaluating whether your client was treated fairly.   For many clients, it will be important to have a forensic psychologist or psychiatrist testify after an evaluation of your client. 

Put your client on last, or close to last, after you have hopefully persuaded the jury that she was wrongfully treated.    A good direct examination is spontaneous and allows your client to tell the story in a compelling and sympathetic fashion.   Get any bad facts out and, if its necessary, admit mistakes.   Your client should try to shift her gaze from you, as you question her, towards the jury.   If she can find friendly faces, deliver her testimony while connecting with them.    Keep the questioning interesting by challenging your client with your questions.   If you can deviate from the outline and create real moments of truth in the courtroom, jurors will likely be more receptive than if they observe you just going through a thorough outline.   Plaintiffs should never get upset or confrontational during cross-examination.   We want the jury to remember direct examination so Plaintiffs should just answer the questions truthfully and directly, in an assertive and calm tone.

  1. Closing Argument

A good closing argument starts by empowering the jury.  Let them know how powerless your client was when she was being mistreated by the Defendant and how only in courtroom can she get justice and it is the jury, and only the jury, who has the power to right these wrongs.  

Let them know what they are going to need to do in answering the questions on a special verdict and let them know that they will have to explain to other jurors in the jury room why they feel the way they do about the answers to the questions.   Let them know the jury instructions provide the law to guide their decisions.

If you can discard the defense’s rationale for termination easily, let the jury know what the case isn’t about.  Then tell them what it is about by showing them the causes of action they will be asked to decide.    Then go through the key jury instructions.  One strategy is to start with credibility of witnesses and show how they can judge who is credible by following the instructions.  Hopefully, you have witnesses who don’t have any bias or prejudice or have a personal relationship with any of the parties involved in the case or have a personal stake in how this case is decided.  Explain how the defense witnesses have a motive to lie and that contradictions in testimony means the jury does not have to accept any part of what they said. 

Highlight key exhibits and testimony in explaining to the jury how you proved your case.  Show differences in treatment, rude or offensive statements, not crediting  your client’s complaints and point of view, how others were treated, and any other evidence of discrimination or harassment.

Discuss the substantial motivating reason jury instruction and emphasize that your client’s race “does not have to be the only reason motivating the discharge or adverse employment action.”   It is always important to reemphasize the burden of proof instruction and that if the scales of justice just tip ever so slightly in Plaintiff’s favor, Plaintiff wins. However, let the jury know that Plaintiff proved her case much more substantially with the evidence introduced at trial.

Oftentimes, are cases are won or lost on testimony so, assuming it favors your case, emphasize the instruction that states “Evidence can come in many forms. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. It can be someone’s opinion.”   Discuss circumstantial evidence and how “as far as the law is concerned, it makes no difference whether evidence is direct or indirect.”

Put together demonstratives that summarize the evidence and how it strongly weighs in your client’s favor.  And always emphasize that the jury should use common sense.  

And after hopefully persuading the jury they should find for your client, go through the special verdict and explain why each question should be answered in your favor.   Explain the substantial factor instruction and emphasize that it is “a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.”

The jury instructions on damages can be very helpful in explaining to the jury how they can award non-economic damages.   Emphasize “the amount of damages must include an award for each item of harm that was caused by any of the defendants’ wrongful conduct, even if the particular harm could not have been anticipated.”

After going through all of the elements of harm such as mental suffering, loss of enjoyment of life, inconvenience, anxiety, humiliation, emotional distress, feelings of isolation, depression, and physical pain, discuss how “No fixed standard exists for deciding the amount of these noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.”

 One good strategy is to give the jury a range of non-economic damages they can award and let them know there are no limits on what they a jury can award.  For example:  Fair and reasonable compensation is your decision and your decision alone.  After it’s over, no one is going to tell you that you made the right decision or the wrong decision.  It is your decision to make.  And there are no limits on what you can award.  You decide what is the value of one’s enjoyment of life, and the harm to a person who is judged not by the content of her character but by the color of her skin. 

 Let the jury know that the more likely than not standard applies to damages.  Explain how your client suffered each of these harms and how much the termination and other unfair treatment changed her life’s trajectory.   Let the jury know that the laws that protect us from discrimination are enforced by you the jury.  You (the jury) are Ms. Plaintiff’s only hope, her one and only chance at justice.

Make sure you thank the jury and leave time for rebuttal.   It’s a good idea to anticipate defense arguments and have responses well-prepared in rebuttal.  And if you have tried a good, honest case that resonates with the jury, justice will prevail and Attorneys’ Fees will follow. 

[1] In Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989), the Court held that  on a Title VII race discrimination case that the “liberal civil discovery rules give plaintiffs broad access to employers’ records in an effort to document their claims.”

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