Leave the Lawyer Perspective Behind: Developing and Presenting Emotional Distress Damages - CELA

Leave the Lawyer Perspective Behind:
Developing and Presenting Emotional Distress Damages

September 16, 2005


Jody LeWitter
Siegel, LeWitter & Malkani
1939 Harrison Street, Suite 307
Oakland, California 94612
Phone: (510) 452-5000
Email: jlewitter@sl-employmentlaw.com

Karen Jo Koonan
National Jury Project
One Kaiser Plaza, Suite 1410
Oakland, California 94612
Phone: (510) 832-2583

I. Legal Standard for Award of Emotional Distress Damages in Employment Cases

A. What are in emotional distress damages

1. “Pain and suffering” as a term of art

a. “Pain and suffering has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock humiliation, indignity, embarrassment, apprehension, terror or ordeal” Capelouto v Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892

b. Includes damages for “past and future … physical pain/mental suffering/ loss of enjoyment life inconvenience/ grief/ anxiety/humiliation/emotional distress . . . ” CACI § 3905A

B. Jury/Fact Finder discretion

1. “No fixed standard exists for deciding the amount of these damages.”

2. Jury is instructed to “. . . use your judgment to decide a reasonable amount based on the evidence and your common sense.” CACI § 3905A

C. Future damages

1. Require proof “. . . that he/she is reasonably certain to suffer that harm.” CACI § 3905A

D. No pecuniary loss required for emotional distress damages

1. Duarte v Zachariah (1994) 22 Cal.App.4th 1652, 1664

E. Aggravation of prior damages

1. If an emotional condition is made worse by the wrongful act, compensation is appropriate. CACI § 3727; Crisi v. The Security Insurance Co. of New Haven, Connecticut (1967) 66 Cal.2d 425, 433

2. “Unusually susceptible plaintiff” should be compensated for damages

a. “. . . even if a normally healthy person would not have suffered similar injury” CACI § 3928

b. This is because “the tortfeasor takes the person he injures as he finds him.” Rideau v Los Angeles Transit Lines (1954) 124 Cal.App.2d 466, 471

II. Witnesses to Utilize

A. The employee/plaintiff

1. Recognize your plaintiff’s strengths and weaknesses

a. Let the jury really understand and empathize with the plaintiff

i. Explain and familiarize the jury with the client’s background especially to explain the context for impact of the damages

ii. Don’t hide the bad; humanize it; make it part of the story

iii. Satisfy the jury’s natural curiosity to know more about your client

iv. Describe background and positive qualities

b. Demystify the client’s culture, country of origin, background, religion and community

c. Forge ties with juror’s backgrounds

d. Can prove a case by plaintiff’s testimony alone

i. Zhang v American Gem Seafoods, Inc. (9th Cir. 2003) 339 F.3d 1020, 1040; Carey v Piphus (1978) 435 U.S. 247, 265

B. Family members should not be forgotten

1. Family members can say things the employee cannot

2. Family members can describe the before and after state of the plaintiff, corroborating the damage

3. Careful that family members don’t volunteer too much

C. Use of Independent and Adverse Witnesses

1. Co-workers and bosses can testify as to plaintiff’s character, veracity and mental status before termination/discrimination

2. Interview neighbors, friends and others to help explain the changes brought about by the defendant’s acts

D. Use of Professionals and Treaters

1. Treaters-doctors, psychologists, social workers, psychiatrists who were retained prior to the termination/discrimination

2. Viewed as more neutral than retained experts

3. Review all their records first

4. Jurors look for on-going counseling or other psychological treatment to establish:

a. the depth of the problem

b. the plaintiff’s commitment to do something about it, and

c. an anchor for determining monetary value

E. Use of Experts and Clinical Diagnosis: Friend or Foe?

1. Will jurors/fact finders credit hired guns retained by either side?

2. Is the emotional distress of an unusual or extreme nature which will benefit from expert testimony?

3. Does the expert humanize the client, tell his/her story and open doors to explaining the emotional distress in a way that other witnesses cannot?

4. Does the benefit outweigh the detriment of close scrutiny of the employee, medical and psychological records, past psychological issues, other issues that cause emotional distress and other possible unknowns in the client’s background?

5. Use of “Objective” Tests and Backlash

a. Some jurors appreciate and value indices of objectivity

i. MMPI and other psychological tests

ii. Diagnosis and Statistical Manual (DSM-IV, DSM-IV-TR)

b. Whatever diagnosis your expert comes up with, expect the company’s expert to attribute any problems to pre-existing personality disorders

i. Mudslinging

ii. Battle of the experts

III. Use of Documents

A. Diaries

B. Medical Records

C. Notes

C. Drawings

D. Other Visuals

IV. Overall Perspective on Presenting Emotional Distress Damages

A. Forge connections and bonds between your client and the jury or particular jurors

1. Juror empathy increases with “it could have been me,” “it could have been my daughter, etc.”

B. Getting to know client well enough to fully understand the emotional damage

1. This takes time

2. This takes non-structured “chatting”

3. This involves learning about your client as a whole person.

C. Use compelling, graphic testimony

D. Don’t let your own discomfort with emotions make you shorten or avoid important testimony

E. Develop an overall likeable, cohesive and understandable presentation of the client

F. Concrete demonstration of the real impact of financial hardships

1. Everyday worries about making the house payment

2. Keeping the electricity on

3. Buying the kids’ clothing or providing for their education

4. Supporting an ailing parent who has no other source of support

G. Explain the sacrifices the plaintiff has made for future benefit which has now been taken away

V. Common Barriers to Awards of Damages: The Critical Role of Jury Perspective and Bias

A. Juror Bias (this person does not deserve the money and will spend it irresponsibly; don’t make the plaintiff richer than she would have been.)

1. Racial

2. Language / National Origin Bias

3. Sex Discrimination

4. Homophobia

5. Ageism

B. Class Barriers

C. Satisfaction with Life

1. People who are dissatisfied with their own lives have a difficult time being generous to others

D. Personality Issues

1. People who tend to see things in black and white have more difficulty understanding intangibles such as emotional distress.

E.. Lack of Common Ground

F. Lack of Understanding of the Importance of Emotional Well Being

G. Moral Judgments of jurors about the plaintiff/character slander

1. Perceived or actual dishonesty

2. Other claims of wrongful termination or discrimination

3. Other firings

4. Problems on other jobs

5. Other lawsuits

6. Differences between jurors and plaintiffs

H. “Everyone Has Emotional Distress”

1. Explain that the difference is this emotional distress was caused by the defendant

I. Critical role of jury selection

1. All jurors have biases

2. Must have jurors capable of empathy

3. Must have jurors that can connect with the particular plaintiff

4. Important to learn of juror biases, get rid of worst, and understand the remaining biases

5. Jurors who are resistant to emotional distress damages tend to be more pro-defense on liability

VI. Common Character or Background Problems that Plaintiffs have to Overcome

A. Criminal record

B. Lack of steady employment

C. Inarticulate or non-verbal

D. Difficult to work with – history of “personality conflicts”

E. Judgmental

F. Angry

G. Shy

H. Malingering, exaggerating or fabricating claims

I. Over-sensitive

J. “Eggshell” plaintiffs and underlying or preexisting emotional distress damages

1. Plaintiffs that come from the school of hard knocks

K. Limited economic damages

VII. Articulating a Theme of Mental and Emotional Pain and Suffering

A. Portray an image of the before

B. Describe family values–brought up to believe, if you work hard, you will achieve and be rewarded–loss of faith and core values. Also establish that plaintiff earned the right to be treated better.

C. Help the plaintiff verbalize the hell she has been through

D. Have the witnesses echo this extreme hell

E. Help articulate the language that goes with the symptoms and suffering

1. Humiliating . . . couldn’t face anyone, just stayed in my house till my wife finally made me go to the doctor

2. Excruciating . . . so unbearable

3. Anxiety . . . couldn’t focus or do anything at all

4. A chill went up my spine . . .

5. Grief from loss of this 25-year job, friends, community etc.– “everything I have worked and sacrificed for”

6. Feelings of helplessness, hopelessness, powerlessness, loneliness, isolation

7. Repeatedly emphasize this emotional distress was caused by the defendant

F. Description of any impairment of normal life

1. The one constant joy (swimming, Sunday visits to family, attending church, etc) was swept aside

2. The annual visit to the grandkids was cancelled

G. Role disruption

1. Getting up in the morning with nothing to do

2. Loss of independence; financial and emotional

3. Boredom

4. Lack of fulfillment and feelings of success and achievement

5. Lack of recreational activities or other joyous activities

H. Impact on relationships with others (the jury sometimes awards emotional distress damages as a way to compensate the family as well)

I. Physical or “objective” manifestations

1. Loss of sleep; insomnia

2. Loss of hair

3. Weight gain or loss

4. Heart palpitations or anxiety attacks

5. Ulcers, stomachaches

6. Headaches

7. High blood pressure

J. Character Changes

1. Going into a shell

2. Lashing out

3. Immobilization, unable to act or participate

VIII. The Important and Persuasive Role of Emotional Distress Damages: Making the Victim Whole

A. The importance of work in an individual’s life

B. The role of money in righting the wrongs in the world

C. The power of a jury in making this world a better place

D. The role of the despicable conduct of the employer as an enhancement to comprehending the injury

IX. The Dollar Value of Pain, Suffering and Emotional Distress

A. The amount need only be a “reasonable amount” CACI § 3905A

B Relationship to economic or other tangible damages

1. Multiples of economic damages 3- 4 times “hard” damages

C. Per diem amount

1. Approved by Beagle v Vasold (1966) 65 C.2d 166, 172

D. Give the jury a number of possible approaches and a range of amounts to give them some guidance while letting them feel that they are making the decision

E. Research past jury verdicts

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