|
Juror Attitudes in Employment Litigation by Art Raedeke Juror psychology has a major impact on the outcome of lawsuits of all types, but especially in the arena of employment litigation. In few, if any, other areas of litigation do prior attitudes, behaviors and experiences have such a profound affect on jurors' reactions to case issues. This psychological "baggage" serves as the filter through which jurors perceive case specific information. In employment cases, juror psychology often creates a substantial pre-disposition toward the plaintiff and a transfer of the burden of proof to the defendant. Jurors tend to identify with employees who file claims of wrongful termination, sexual harassment or discrimination seemingly out of the feeling that, "There, but for the grace of God, go I." Jurors' initial inclinations toward the plaintiff in employment cases are fueled by a number of factors. First is a considerable sense of personal vulnerability in the workplace. In a recent case, for example, only about 40% of the jurors who participated in a mock trial said they feel very secure in their jobs. With the rise in corporate downsizing and out-sourcing, job insecurity has spread across almost all classes of workers. People who have been or who know others who have been the victims of layoffs and terminations are often concerned that worker rights are not well- protected in our society and may view the courts as a line of defense against mistreatment by employers. A second factor affecting jurors' views in employment cases is a widespread perception of employer misconduct. It is not unusual for a majority of jurors to feel that they or someone close them has been the victim of unfair treatment by an employer. These personal experiences foster a presumption of "guilt," since jurors tend to think mistreatment of employees is commonplace, and they find claims of wrongful termination, harassment or discrimination to be very plausible. Jury research has demonstrated that large majorities of jurors think older people, minorities and women are very often the victims of discrimination. Take, for example, the comment made by a mock juror in a sex discrimination case: "Big companies do a lot of that (discrimination) and have covered their deeds. There will always be men not wanting women anywhere." In jury research conducted in conjunction with sexual harassment litigation, over half of the mock jurors felt sexual harassment is "common in the workplace" and three-fourths said they would tend to believe a woman who claimed she had been sexually harassed. This presumption of guilt also tends to shift to the defendant the burden of disproving the plaintiff's claims. Making matters worse for defendants is the fact that jurors frequently hold employers to a higher standard of behavior than does the law, and they judge the defendant's actions not only from a legal perspective, but from the perspective of fairness and even "courtesy." At-will employment is one area for which jurors often hold employers to a higher duty than does the law. In recent research, a majority of the jurors disagreed that employers have the right to terminate an employee without cause. A smaller, though still considerable proportion of the jurors said it is wrong for an employer to terminate employees in order to reduce operating costs. This attitude is even more widespread if the company laying off workers is profitable, and it is certainly stronger concerning termination of a long-term employee. Even when jurors understand and agree with the business rationale for a termination, the defendant is often held accountable for the way in which the situation was handled. For example, in a recent sex discrimination case the defendant argued that the plaintiff's termination resulted from an economically necessary reorganization. While almost all the jurors in a mock trial agreed with the business rationale for the defendant's decisions, plaintiff jurors were offended by the way in which the situation was handled and sided against the defendant. Many of these jurors even concluded that the plaintiff's sex had nothing to do with her termination, but because they felt the plaintiff had been treated unfairly, found for her on the claim of sex discrimination. As one plaintiff juror put it, "I don't think it was discrimination, but unfair business practice and harassment." This reaction is not unusual in employment cases. How the situation was handled is often more important to jurors than why decisions were made, and even if the defendant is on solid legal ground, jurors may still render adverse verdicts on the grounds of fairness. Verdicts dealing with the covenant of good faith and fair dealing are especially prone to broad interpretation by jurors. This point was illustrated in post-trial interviews with jurors who served on an age discrimination and wrongful termination case against a large corporation. The jury found for the defendant on the discrimination and wrongful termination claims, but sided with the plaintiff on the claim of breach of the covenant of good faith and fair dealing. In explaining the verdict, jurors regularly referred to the defendant's insensitivity in handling the termination. To one juror, "The personal touch is disappearing. Instead of (the defendant) going to (the plaintiff's) home to discuss the matter, she was left adrift about her status. She was a victim of a large corporation that did not treat her fairly or ethically correct. (The defendant) had no inclination to go beyond the front door to help her. It was not like, 'Let's go out for a cup of coffee and talk about this.'" Not all the prior attitudes and predispositions jurors typically bring with them to employment cases favor the plaintiff, however. A large majority of jurors recognize the justification for terminating employees who are not performing up to standards or who have violated company policy. And, despite their perceptions of widespread misconduct by employers, jurors generally think most terminations occur for good reasons. Moreover, jurors can be quite suspicious of the plaintiff's motives in bringing suit. In a recent race discrimination case, for example, 65% of the mock jurors agreed with the contention: "People often claim discrimination when they don't get what they want." Almost as many (61%) agreed: "Too many people sue to make easy money." In light of jurors' pre-dispositions in employment cases, it is important for the trial attorney to understand and prepare the case not only from a legal perspective, but also from the jury's point of view. It is critical to identify how jurors view the claims and responses from the standpoint of fairness and decorum. Pre-trial empirical jury research allows you to develop a model of juror decision-making that identifies the key factors that affect verdicts and can help answer questions like:
This last question poses some significant considerations in employment cases. How can attorneys get jurors to admit to biases that might affect how they perceive case information? Oral voir dire has clear limitations, in that jurors are often reluctant to discuss in open court personal experiences that might affect their decisions. For this reason, it is helpful to use a written voir dire questionnaire administered by the court that can delve into juror background more effectively and extensively than can oral voir dire. Written questionnaires not only collect information from jurors more consistently, they also encourage greater candor in juror responses. The problem that often occurs with written questionnaires, however, is inadequate time to review them. It is important, therefore, to arrange with the judge to have enough time to process the information jurors have provided. Employment litigation provides a good example of how jury psychology can affect trial outcomes. Since verdicts in cases of all types are affected by jurors' prior attitudes, beliefs and experiences, however, it is important for trial attorneys to understand and take into account how this "baggage" affects jurors' reactions to the facts and arguments in their case. |