What's fueling the recent rise in jury awards?

By Sylvia Hsieh
The Daily Record Newswire
 
BOSTON — The past year saw some of the highest Top Ten Jury Verdicts in recent years, exceeding the previous two years. Are jury verdicts trending higher?

How is the prolonged economic downturn affecting juror attitudes, and has any of the public frustration displayed in anti-corporate protests like the Occupy Wall St. movement seeped into jury deliberations?

We talked to several experts who spend a lot of time in the courtroom to get their opinions about what juries are responding to. Here are three views of jury trends from a plaintiffs’ personal injury attorney, an employment defense lawyer and a senior jury consultant.

Veteran New York plaintiffs’ personal injury attorney Bendict Morelli won one of the largest verdicts this past year in a sex harassment case brought by a 20-year-old store clerk who alleged her employer, national furniture chain Aaron’s, ignored her complaints about harassing behavior by her manager that culminated in a sexual assault that supplied the plaintiff with DNA evidence.

Despite the $95 million verdict, Morelli denies jury verdicts are trending upwards.

“Damages in cases have not gone up. Everything else has gone up, but we’re getting the same damages and settlements as we did in the ‘80s,” said Morelli, who has represented plaintiffs in a range of civil cases over the years, including medical malpractice, defective drug and employment discrimination matters.

In fact, he says juries are more difficult to convince than ever.

“Jurors are tougher now. They are reluctant to give away money. Everybody’s talking about cutting the deficit, how every city is bankrupt,” he said.

His explanation for the apparently larger and larger verdicts is that defendants are taking more cases to trial.

“In the last two to three years I see a trend toward defendants playing hardball, whether it’s a big corporation or an insurance company. They want to force plaintiffs to take a very low number,” said Morelli, a partner at the New York firm Morelli Ratner.

But once in front of a jury, any whiff of corporate arrogance will cook a defendant.

“If you have a jury and you lie to them and they smell it, you’re dead,” he said.

In the sex harassment case he handled, for example, the defendant told the EEOC the plaintiff never called the complaint hotline, but phone records proved otherwise.

Then at trial, a corporate representative made a u-turn on his story, saying first that the incident never happened, then saying it happened but was consensual.

“It’s not that [defendants] are stupid. It’s arrogance. That’s why they get crushed. They start believing their own story,” said Morelli. “The jury said, ‘OK, we’ll give them some humility.’”

Defense perspective
Portia R. Moore, a partner at Davis Wright Tremaine in Seattle, who defends companies in employment lawsuits, says in this economy if a defendant loses on liability, “they’re going to be hit big.”

“Jurors are generally pissed off, but particularly at big corporations and big government. They take it out on them,” she said. Moore knows that if a jury goes back to the deliberations room talking about her client — as opposed to the plaintiff — she’s in trouble.

She recently won a defense verdict in a difficult employment discrimination trial for Kaiser Permanente, which was sued by a female employee for gender, disability and sexual orientation discrimination.
The plaintiff had stellar evaluations for 10 years before she was fired.

But Moore said she succeeded because she wasn’t afraid to take on the plaintiff in an aggressive but fair way, portraying her as a self-promoter who believed she was better than she was and would not listen to others. Moore stayed away from damaging evidence that didn’t pertain to her work record, such as evidence of child abuse.

She thinks defendants often mistakenly shy away from putting a harsh light on the plaintiff for fear that it will create sympathy.

In another recent win, she got a defense verdict for BOSE Corp. against an African- American plaintiff who alleged his supervisor made racial jokes and used the n-word in front of him.

“You can’t be afraid to take a plaintiff on,” she said. In that case, Moore pointed out that the supervisor used the n-word in a role-playing incident and another time in a racial joke, but as soon as the plaintiff complained, the supervisor was disciplined and never did it again.

“I told the jury this was a teachable moment,” said Moore, who is African American. “The manager admitted he used the word. Was it wrong? Absolutely. But look at the context. There’s a difference between calling somebody the n-word and [a company] finding out about it and taking action.”

Moore works closely with corporate witnesses to correct what she sees as a mistake: thinking they always have to be right.

“If you get up there and lie, and say you didn’t do anything wrong, that’s where you get into trouble,” said Moore. “But if you get up on the stand and say, ‘I didn’t handle this as well as I should have, but here’s why I did what I did,’ any jury will accept that.”

As vice president of Tsongas Litigation Consulting in Seattle, Theodore S. Prosise says that if there’s one thing juries want to see, it’s accountability.

Prosise has his finger to the wind to see if growing public dissatisfaction carries over into jury rooms.

“We’re taking into consideration the 99 percent movement because it’s an energetic expression of an underlying concern about the lack of accountability,” said Prosise, who primarily advises corporate defendants.

While jurors don’t expect corporate defendants to be perfect, they do respond to evidence of systemic failure, he said.

“There’s a very strong notion that, ‘Yeah, there are bad apples everywhere,’ but what’s more egregious is a lack of concern or allowing a bad act to continue. It’s accountability people want to see,” Prosise said.

A corporate witness who appears dismissive of the case and gives the jury the impression that he or she would rather be somewhere else only reinforces a common stereotype of the greedy corporation, Prosise said.

“A trial is small group democracy. A dismissive approach is a constant reminder that you’re not paying attention to the 99 percent. Jurors will find a way to send the proverbial message to a defendant if they don’t feel it is taking the underlying facts, as well as the trial itself, seriously,” he said.

But accountablilty is a two-way street that defendants can also capitalize on by focusing on the plaintiff’s own personal responsibility.

“There are people … that do complain too much, that aren’t accountable for their actions and blame others and nothing is their fault. If [a defendant] can get the jury talking about that [type of] plaintiff, you are really a step ahead of the game,” Prosise said.
 

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