Trial considerations for sexual harassment cases involving severe mental and emotional injuries

Jury selection is critical

Jury selection is critical in any trial. The attorneys and the judge (or in certain federal cases, the judge alone) will pose questions to prospective jurors. The questioning of potential jurors is commonly referred to as “voir dire.” During voir dire, the attorneys must decide whether to accept or challenge each potential juror.

Selecting the right versus the wrong jury is one of the most important tasks your personal injury trial attorney will perform in your sexual harassment trial. Most people in the mainstream working world have very strong views about sexual harassment. People may not spend much time thinking about other legal issues. However, sexual harassment cases are different. Since the Anita Hill hearings, sexual harassment has become a part of our national dialogue. By now, anybody who works for a mid-sized to large company has received sexual harassment training. Further, some of the potential jurors may have been involved as parties or witnesses in sexual harassment cases.

The fact that a person’s opinions on the subject of sexual harassment may almost rise to the level of belief is extraordinarily significant in jury selection because:

  • A person’s particular background in sexual harassment can become a critical factor as to how that person views evidence.
  • Certain subsets of our population tend to be on opposite sides of the issue of sexual harassment.
  • There is probably very little that an attorney can do at a trial to change, alter, or even modify a potential juror’s strong belief system in the area of sexual harassment.

Background of the juror

By current legal standards, many potential jurors, particularly women, have been sexually harassed in the workplace. And under the same current legal standards, many other potential jurors, mostly men, have sexually harassed women at some time. The rest of the potential jurors have probably witnessed sexual harassment in one form or another or know somebody who has been sexually harassed.

To make matters far more complicated for jury selection, although people love to talk about sexual harassment in the abstract, very few people like to talk about their personal experience with sexual harassment, particularly if they have been a victim or perpetrator. It may be seen as intrusive or offensive for an attorney to ask directly in open court, in front of the other jurors, whether a juror has been sexually harassed or has harassed others. Instead, it is usually better to encourage people to reveal their opinions and beliefs about the subject of sexual harassment. For example, your attorney might ask the potential jurors about well-known cases like Anita Hill’s, or ask them to describe scenarios they have seen, or heard about, but without identifying the participants. A discussion of these cases may open a juror up to a discussion of his or her own experience, and, at the very least, learning jurors’ opinions about abstract or well-known cases will be valuable.

Sociological factors and stereotypes can be misleading

Through experience in the use of focus groups in jury selection preparation, many plaintiffs’ personal injury attorneys have learned that certain segments of the population tend to have different points of view about sexual harassment. However, there are always exceptions to any tendency or stereotype. Also, since every sexual harassment case is different, variation in parties and fact situations may influence the type of juror an attorney wants to accept or reject. The most important consideration is not whether the juror is a man or woman, is younger or older, or is single or married. The most important consideration is that each juror understands and will be guided by the legal obligation of all employers to protect their vulnerable workers.

Use of consultants and focus groups

In certain sexual harassment cases, the plaintiff’s personal injury trial attorney may decide to use jury consultants, or to conduct focus groups and mock trials before the courtroom case begins. Experienced jury consultants can help the attorney prepare, and perhaps conduct, jury selection. Further, the consultant can help identify subsets of people who are likely or unlikely to be good jurors in a given sexual harassment case. The plaintiff’s attorney cannot rely upon stereotypes alone to accept or reject jurors, and the plaintiff’s attorney cannot generalize from one case to another. Jurors’ impressions and opinions may differ depending upon the plaintiff and defendant in a particular case, and the type of alleged harassment.

Consultants can also perform a mock trial or focus group in which mock jurors are presented both sides of the case and then are asked to express their opinions about the case, and, in certain situations, deliberate. A well-conducted focus group will help an attorney (1) assess which jurors are likely to be good or bad in a given case, and (2) prepare for trial, because the mock jurors will point out the weaknesses or strengths of a case. Jury consultants can also assist in preparing jury questionnaires and oral voir dire questions.

Use of jury questionnaires

During jury selection in a sexual harassment case, a knowledgeable and experienced personal injury trial attorney will seek to create an atmosphere in which people are willing to communicate openly and honestly on the subject of sexual harassment. Many people have personal experience with sexual harassment, or hold strong beliefs on the subject, yet they consider those experiences and beliefs to be personal matters. They will be hesitant to speak about such personal matters in front of strangers in open court, but they would be more comfortable responding in a written questionnaire. Therefore, jury questionnaires in which people can confidentially identify whether they have been involved with sexual harassment may be extremely useful. In the right situation, the plaintiff’s personal injury attorney will seek to convince the trial judge to allow the attorneys for both sides to use a questionnaire. Then, in the privacy of the judge’s chambers, the attorneys can interview those people who indicate in their questionnaire responses that they have had personal experience with harassment.

Opening statement

The opening statement in a sexual harassment case should provide the jurors with the beginning of the framework that they will need to decide the case. Most jurors will have strong opinions on the subject of sexual harassment. However, many jurors will not know the actual law and will not know how they are supposed to apply the law to the actual facts of the case.

In opening statement, your personal injury lawyer may need to explain some of the basic laws of sexual harassment. In the proper case, your attorney would (1) introduce the basic concept of unwelcome touching, (2) explain what is meant by a hostile work environment, and (3) explain to the jury the law against “quid pro quo” (this for that) arrangements between employers and employees.

In addition to introducing the basic legal concepts, it is important for your attorney to tell your complete story in opening statement. With this preview, the jurors will already have a basic understanding of the events when they later listen to the testimony of the experts and lay witnesses.

As needed, your attorney should emphasize the policies, procedures and actions of the employer. The responsibilities of an employer under the law to prevent sexual harassment should be explained to the jury. The jury needs to understand how, under the law, sexual harassment policies must be implemented. Finally, an explanation of why the reaction of the employer to your particular allegation of harassment is so important to you and to society. If the employer failed to adequately handle prior complaints of harassment, this fact should be emphasized. If the employer failed to respond adequately to your complaint, the jury should consider what signal this gave, not only to you, but to others in the company who watched the misconduct go uncorrected.

It is possible that your own conduct may need to be discussed during opening statement. Questions your attorney may want to address, depending on the facts, include: Why did you stay in the harassing situation? Why did you not report the harassment earlier? What finally caused you to take action? The defense will probably put a negative spin on your conduct. Therefore, your attorney may choose to deal with these questions at the outset of trial, before the defense has a chance to raise them in a negative way.

Also, during opening statement your attorney may inform the jurors that you will be asking for a punitive damage award at the conclusion of the case.

Testimony of plaintiff’s psychological expert

One of the most difficult decisions your plaintiff’s personal injury attorney has to make in your sexual harassment case is whether or not to call as a witness an expert psychotherapist. There are a number of advantages and disadvantages to testimony of a psychological expert, and those advantages and disadvantages must be weighed and a decision made on a case-by-case basis.

The advantages of calling a psychotherapist include:

  • A psychological expert can explain to the jurors your behavior while you remained employed. A psychological expert can answer the questions of why you simply did not quit, or why you did not do more to resist the harassment, or did not report the harassment earlier. In most cases, there is a sophisticated psychological explanation which will answer these very important questions which the jurors will be asking.
  • A psychological expert can explain to the jury the inherent power differential that exists between employers and employees. The power differential usually goes beyond the power created by the ability to fire someone. There are major subtle psychological forces at work in the workplace that provide an explanation for how sexual harassment occurs and why it must be stopped.
  • If you have not been able to return to work or to seek alternative employment for psychological reasons, it may be imperative to have a psychological expert explain your disability.
  • If you developed a serious mental disorder as a result of the defendant’s misconduct, a psychologist will probably be necessary to explain the nature of the disorder and why it was caused by defendant’s misconduct.
  • A psychological expert can help in explaining to the jury the degree of your mental and emotional distress.
  • Psychological testing can provide objective evidence of your injury.

There are also disadvantages to using psychotherapists at trial, including:

  • It may appear to a jury that plaintiff and plaintiff’s attorneys are attempting to “build up” a case and overreact.
  • Some jurors may be turned off by the testimony of psychotherapists.
  • Plaintiff’s entire psychological history will come into evidence if a psychological injury is claimed. In virtually every case negative facts about plaintiff will be presented to the jury, which would not be presented if plaintiff was not claiming a psychological injury and a psychotherapist did not testify.
  • The testimony of a psychological expert will focus the attention of the jurors on plaintiff and plaintiff’s psyche. However, in most sexual harassment cases, it is more important for the jury to pay attention to the misconduct of defendant.

A knowledgeable sexual harassment trial lawyer will weigh all the variables in determining whether the advantages of using a psychological expert outweigh the disadvantages in your particular case.

Closing argument

After all the witnesses have testified, each side can present a closing argument to the jury. In many cases, the closing argument should begin with the answer to the rhetorical question of “Why are we here?” The jury needs to appreciate the importance of their task and why this case is a particularly important case. Your sexual harassment attorney’s closing argument may need to focus on different aspects of the case, including liability, the defendant’s misconduct, and damages.

Discussing liability

A sample approach that a sexual harassment attorney might take to explain liability during closing argument is as follows:

“We are here because we as a society have created laws to protect employees and to limit the out-of-control behavior of large corporations. Your decision will go a long way in deciding how people will treat each other in the workplace, [in cases with a female plaintiff] how our wives will be treated, how our lovers will be treated, and how our daughters will be treated in the workplace.

In this case, the defendant company did not properly control its supervisors. Instead, the company protected the supervisors at the expense of plaintiff and the victims before her. You will decide whether a company has a duty of loyalty to the supervisors only, or whether defendant also has to follow the law and protect its wage-earning employees.

The company has protected its supervisors. However, only this court can protect lower-level employees like the plaintiff, who are otherwise powerless.

Are employees who are lower-level employees expendable? Can they be fired for immoral and improper purposes? Can they become the sexual playthings of ‘the big boys’ in the company? Are we going to live in a society where an employee’s only salvation from the harassing behavior of a supervisor is to quit?”

As the preceding example indicates, the plaintiff’s injury lawyer can explain why there are laws prohibiting sexual harassment. The plaintiff’s attorney can point out to the jury that there are laws that we as a society have passed to protect workers from harassment. The emphasis is not on the sex, but rather on the harassment. We as a society have determined what is tolerable and what is intolerable and we have created laws which help clarify for employers what is intolerable. Employers must follow the rules and laws just like we must follow the rules and laws in our jobs. We have to report to work at a certain time and act in a certain way at work. The laws of the state make similar requirements for supervisors. Under the law, supervisors are not allowed to harass employees and must protect employees from harassment.

The plaintiff’s personal injury lawyer can also mention that defendant’s mistreatment of plaintiff not only injured plaintiff, it injured every other employee at the company, because the company has sent out a message to all of its employees that sexual harassment is tolerable, and it is okay for the supervisors to break the law and not protect its employees.

Discussing misconduct of defendant

The emphasis in most sexual harassment cases should not be on the sex, but rather it should be on the harassment. That is, the jurors should focus on the defendant’s misconduct.

During closing argument, the plaintiff’s attorney can connect the plaintiff’s damages to the perpetrator’s mistreatment and the failure of the company to respond to protect the plaintiff and stop the perpetrator. In closing argument in the appropriate case, the plaintiff’s injury attorney can discuss misconduct and damages in the following way:

“This company had four prior chances to protect its employees from the harassment of supervisor X. However, the mere complaints of the other employees had no effect on the corporation.

This corporation had one concern and one concern only, and that is the making of money. This company made millions of dollars while failing to recognize and protect the needs of the workers who helped the company make its profits. Ms. A was one of those workers. She has had to endure an unbelievable amount of harassment and distress so that she could put food on the table for her children. Now the company wants to tell her, ‘We paid you your wage. Why have you come in here and asked us to pay you more? You are not entitled to any more. You are a bother. You are a nuisance. Go away.’”

With this type of argument, the plaintiff’s personal injury attorney connects the misconduct of the defendant with the plaintiff’s damages and injuries.

Discussing damages

In the appropriate circumstances, the plaintiff’s personal injury attorney can discuss damages during closing argument in a manner similar to the following example:

“This company is telling Ms. A that she is worth nothing. She was someone whose services they purchased much like they would purchase a machine. If the machine worked and produced, the company had no complaints. When the machines before Ms. A worked and performed despite reported harassment, the company was happy.

However, when the machines became squeaky and the prior employees complained about intolerable work conditions, the company at first ignored their complaints and then replaced them without fixing the human problem that existed in the company. But somebody needs to tell this company that companies are made up of more than machines; they are made up of human employees. The company can do what it wants to machines that it owns, but the company does not own its employees, and there are laws that insure that employees of the company can work in a hostile-free environment and can be treated with human dignity. If you let them get away with this harassment by not fully and completely compensating Ms. A, you are telling the company that not only is Ms. A worthless, but that human dignity and fairness are also worthless, and the laws only need to be followed by the little people, not the high and mighty corporations. When assessing emotional distress damages in this case, remember that the starting point is assessing the damage that is done to human beings that cannot be done to machines because machines do not feel. If somebody rented this company a multi-million-dollar machine and the company returned it and refused to pay for millions of dollars of damage, would you have any hesitancy in compensating the renter of the machine for the full measure of his damages? Well, in this case, the “fixing of the machine” is only the beginning of the damages which Ms. A suffered. The “fixing” damages are the past and future psychological expenses and past and future wage loss. But since Ms. A is a human being and not a machine, an award of those types of damages does not get Ms. A back to even. Those are simply the smallest element of damages. Laws against harassment are laws which were created to protect human beings from an intolerable insult to their sense of human dignity.

Because we as a society have determined that human dignity is precious, we as a society have created laws that state that when you attack a person’s human dignity in an intolerable manner, you must compensate them for the full measure of their damages, not simply replace their wages and pay their medical bills.

What this company has really taken away from Ms. A is her peace of mind. Peace of mind is the most valuable and precious thing that we can have. We all have travails and difficulties in our lives. We all have bad days. We all have difficult times. But as long as we have our peace of mind, we can survive and life is worth living. When you steal away somebody’s peace of mind, you leave them a life of utter torment and despair, self-hatred, anxiety and depression. Every day, every moment becomes bleak and unbearable. Our society recognizes that the insult to human dignity can cause these types of damages. Therefore we have outlawed conduct by employers which can create the loss of peace of mind. Our Legislature realized that the score had to be evened when somebody’s peace of mind was stolen from them by a profit-making company who decided to ignore the law and allowed harassment of employees. If you would pay the owner of a machine $2 million for a machine that this company destroyed, what should this company have to pay for the destruction of Ms. A’s peace of mind?”

Discussing injustice

In closing argument, your plaintiff’s sexual harassment lawyer can also discuss the injustice in the way you were treated by the defendant. As appropriate under the facts of the case, your attorney can emphasize what you gave to the company and what the company took from you in order to help the company do what companies do, that is, make profits. The company profited, or at least benefited, by your human sweat and labor, and, as a result of that, you deserved to be treated fairly and justly. To some extent, you were dependent upon the goodwill and good faith of the company, and the company let you down by not acting with goodwill and good faith toward you. The sacrifices which you made for the company should be emphasized. In other words, a jury needs to understand what you gave up to serve the company’s interests.

Depending on the facts, your attorney can approach the issue of punitive damages by pointing out to the jurors:

“The defendant failed to police itself in terms of preventing sexual harassment in the past. Therefore, it will take a punitive damage award to ensure that this time the company ‘gets it,’ that is, that we as a society have decided that sexual harassment of employees is not tolerable and cannot be permitted. Left to its own devices, defendant permitted a hostile work environment to exist and flourish. Defendant received warnings that it had a serious problem, yet defendant ignored the warnings.

A small punitive damage award will do absolutely nothing to prevent this type of misconduct from occurring in the future. A small punitive damage award will, first, send a message to defendant that it can get away with sexual harassment. It will also send a message to all other corporations that if they, like defendant, violate the law, they will basically be able to get away with it and receive only a slap on the wrist. The only punitive damage award that will matter is one that will actually make defendant hurt, and the only place it can hurt is the pocketbook. Defendant and all other corporations must receive the message that ignoring the sexual harassment problem within the company, or retaliating against a person who reports sexual harassment, cannot be written off as a cost of doing business.”

As shown in the preceding example, the jurors should be reminded that they are awarding punitive damages not to provide the plaintiff with a windfall, but rather to protect themselves and their families and loved ones from being harassed in the future by out-of-control employers.

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