When does $5,000,000 not equal $5,000,000?

Elizabeth Graham worked as a benefits generalist in the human resources department of Bristol Hospice Holdings. She filed (and later withdrew) an EEOC charge alleging age and sex harassment. A couple of months later, during an acquisition integration, the company accused her of blowing off a training assignment (and then lying about it). The VP of HR terminated her — allegedly for insubordination and falsifying what happened.

A federal court jury just awarded her $5,000,000 in punitive damages, on top of $75,000 in non-economic compensatory damages. That punitive award will never last.

An adverse jury verdict is just a number on a piece of paper

Late last week, a federal jury tagged Walmart with a verdict totaling more than $125 million in a disability discrimination lawsuit the EEOC brought on behalf of an employee with Down syndrome.

The facts were not great for Walmart. 

25 million reasons to tell a good story

Trying an employment case to a jury is an art. You are limited by a jury’s attention span (which, by the way, is getting worse as a result of 1,000 channel cable systems and 140 character tweets) to convey your message as quickly and as simply as possible. Complex legal arguments are out; creative storytelling built around a unified theme is in.

The allegations of racial harassment in Turley v. ISG Lackawanna Inc. are horrible. They involve graffiti about King Kong and the KKK, a toy monkey with a noose around its neck tied to the plaintiff’s car, and death threats. For the full flavor, I recommend reading the court’s opinion denying (in part) the employer’s motion for summary judgment.

Yesterday, the jury returned a $25 million verdict in favor of Mr. Turley on his claims of racial harassment and intentional infliction of emotional distress. According to the Buffalo News, one of the employer’s themes at trial was that “much of what happened at the steel plant is the kind of ‘trash-talking’ that’s common in manufacturing facilities.”

I once handled a case with similarly egregious allegations of racial harassment (KKK graffiti, liberal n-bombs, threats to drag the plaintiff tied to a truck, and a fistfight with his allegedly racist supervisor). The case settled on the eve of trial for several decimal points less than $25 million.

At trial, I was not planning on debasing the plaintiff’s allegations by challenging their veracity (there were too many witnesses that would verify most of them), or by portraying the events as something they were not—such as horseplay or trash-talking. Instead, I built my case around the fact that the plaintiff had resigned in the face of these allegations and voluntarily chose to return to the same workplace a few months later. He only sued (I would argue) out of embarrassment after losing a fight. In other words, I was planning to try the case by challenging the plaintiff’s perception of the workplace and the harm it caused him, not the racial motivation of his co-workers.

I know nothing about Turley v. ISG Lackawanna other than what I’ve read in the above-linked opinion and news story. But, it strikes me that likening KKK graffiti and a toy monkey with a noose around its neck as common “trash talking” is a recipe for a disaster, even if $25 million strikes me as excessive.

The “when” of counting employees for damage caps in federal discrimination cases

Counting is wonderful,
Counting is marvelous,
Counting’s the best thing to do.
Counting is happiness,
Counting is ecstasy,
I love to count, don’t you?
– Counting Is Wonderful, Sesame Street

Under the Civil Rights of 1991, the sum of the non-economic damages (future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, other non-pecuniary losses, and punitive damages) in Title VII, ADA, and GINA cases is capped between $50,000 to $300,000, depending on how many employees a defendant “has … in each of 20 or more calendar weeks in the current or preceding calendar year.” According to Hernandez-Miranda v. Empresas Díaz Massó, Inc. (1st Cir. 6/29/11), when you count employees for purposes of determining the number of employees depends on how you define “current.”

In that case, a jury awarded the plaintiff $300,000 in damages in her sexual harassment lawsuit, in which she proved that during her employment as a construction worker, she was forced to perform oral sex on a supervisor multiple times and was also subjected to extreme, continuing sexual abuse by coworkers and supervisors, all of which her employer ignored. The district court reduced the jury award to $50,000, using the year of the verdict to measure the number of employees.

The 1st Circuit, falling in line with other cases from the 4th, 5th, and 7th Circuits, concluded that the “current” year is the year the discrimination occurred, not the year of the verdict. In doing so, the court examined the policies behind the statute’s caps on damages:

It is clear that Congress did intend to protect …smaller employers … from ruinously large awards…. Congress, we believe, intended such protection for those who were small employers at the time of the discrimination, and not those who by happenstance or design became smaller employers between the time of discrimination and the time of the verdict.

This construction best serves Title VII’s purpose of encouraging resolution of disputes before litigation commences. This purpose … is best advanced by providing clarity and certainty as to the size of potential damage awards from the outset of a dispute. [Non-economic damages] are inherently more difficult to value precisely than the back pay damages traditionally available under Title VII, rendering this type of clarity and certainty all the more important in allowing litigants to make informed decisions about settlement.

Clarity and certainty of potential liability also allows for both sides to set realistic litigation budgets and evaluate whether cases are worth bringing and defending. Such clarity and certainty allows businesses to set adequate reserves, disclose those reserves in annual reports as necessary, and make assessments about whether and how much to insure against the risk of litigation.

Therefore, a court must count the number of people employed when the discrimination took place. The number of employees at the time of the verdict is irrelevant.

The court also concluded that because an employer must affirmatively move to apply the damage caps, it is the employer’s burden to prove the number of employees during the relevant time period.

This case has three important takeaways for businesses:

1. Depending on a business’s size, these caps can have sizeable implications. For example, the ruling in Hernandez-Miranda increased the recovery from $50,000 to $200,000. If you are a small employer (500 or fewer employees) defending a Title VII, ADA, or GINA lawsuit, you omit evidence of the number of employees at your peril.
2. If it makes a difference, introduce evidence of the number of employees both during the year of the discrimination and during the year of the trial. Until the Supreme Court weighs in on this issue, the law is in flux. There is no guarantee that this court will have the final say on this issue, and a different circuit can reach a different result.
3. Ohio’s tort reform statute, which also provides caps for punitive damages, but which lacks the same language as its federal counterpart, is likely unaffected by Hernandez-Miranda. Ohio small employers defending state-law claims should not necessarily look to the Hernandez-Miranda ruling for relief.

“He grabbed her, threw her to the floor, pulled up her shirt, masturbated and ejaculated on her” = $95 million (wow)

The acts of sexual harassment alleged by Ashley Alford against her supervisor, Richard Moore, in Alford v. Aaron Rents, Inc. are among most horrific I’ve ever encountered (taken from the court’s opinion denying the employer’s motion for summary judgment):

• Shortly after Alford began working at Aarons, beginning in November 2005, Moore began intentionally and inappropriately touching her.
• Moore called Alford degrading pet names, such as “Trixie” and “Trix.”
• Moore gave Alford unwanted gifts for which he demanded “sucky-sucky.”
• Moore grabbed Alford by her ponytail, unzipped his pants, pulled her head back and hit her in the head with his penis, twice.
• Moore grabbed Alford, threw her to the floor, pulled up her shirt, masturbated, and ejaculated on her.

As reprehensible as these allegations are, what is perhaps more stunning is that Alford’s employer ignored her complaints for more than a year, and only took action after she involved the police.

Last week, a jury added up all of these facts and returned with one of the largest verdicts ever in a single-plaintiff harassment case—$95 million. The St. Louis Post-Dispatch quoted a representative of the company, who called the verdict “the work of a ‘classic runaway jury.’” I agree. The conduct proven at trial was horrendous, but no single-plaintiff employment case is worth $95 million. 

Nevertheless, this verdict underscores the importance of prompt and thorough investigations into complaints of harassment by employees. The jury did not subject the employer to this verdict because of the acts of a rogue supervisor, but because the company did not do anything about him when the plaintiff complained.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Ohio appellate court slashes state’s largest discrimination verdict by more than 75%

It has been almost two years since a Cuyahoga County jury handed down what remains the state’s largest single-plaintiff employment verdict: $46.6 million ($3.5 million in compensatory damages and an astounding $43.1 million in punitive damages). As is often the case, however, what the jury gave, the court of appeals took away (at least in part).

In Luri v. Republic Services (5/19/2011) [pdf], the appellate court concluded that employment discrimination claims are subject to Ohio’s damages caps in tort actions. In such actions, punitive damages are capped at two-times the compensatory award. Therefore, the trial court should have reduced the punitive award to a maximum of $7 million. This decision likely reduces the verdict from $46.6 million to a still-robust $10.5 million.

This case is significant for two reasons:

1. Ohio’s most recent foray into tort reform (effective since 2005) is vague on whether it applies to discrimination lawsuits. The Luri case joins the small list of cases to apply these tort reforms to discrimination claims. These reforms not only include the caps on punitive damages, but also the right to automatically bifurcate the issues of compensatory and punitive damages during covered jury trials. For this reason, this decision marks a significant victory for Ohio’s employers. I’ll have more on what these tort reform provisions mean tomorrow.

2. There are many opportunities after a plaintiff’s verdict for an employer to alter—or eliminate—the number that appears on a final judgment. Jury verdicts are followed by post-trial motions, which are then followed by appeals. While a jury verdict is often viewed as the final battle in a case, it rarely ends the war. 

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Quicken Loans beats multi-million dollar overtime claim

The Department of Labor may not be the most hospitable place for employers these days. Federal juries, however, can prove to be just the opposite. Nearly a year ago, the DOL issued a game-changing Administrator’s Interpretation that mortgage loan officers are not exempt under the Fair Labor Standards Act. Last Thursday, a federal jury concluded that a class of 350 specific mortgage loan officers employed by Quicken Loans are exempt administrative employees under the FLSA.

Here’s the jury’s verdict form:

What does this mean?

1. The jury’s conclusion that the mortgage brokers are exempt is the complete opposite of the DOL’s conclusion in its March 2010 Administrator’s Interpretation. In other words, while employers should be wary of what the DOL is doing in this area, its words is not the gospel.
2. Even though the jury concluded the plaintiffs were exempt, they took the time to fill in an unnecessary “0” on the line asking how many average hours the plaintiffs worked in a week. In other words, the jury simply did not believe the plaintiffs’ story. While lawyers are trained on the law, cases are won and lost on their facts.

The Detroit Free Press quotes Quicken Loans founder and Chairman Dan Gilbert, “It was never about money for us. It was always about right and wrong.” Crains Detroit Business estimates that the defense verdict saved Quicken Loans between $4 million and $30 million in damages for unpaid overtime. Sometimes, it absolutely pays to fight these battles.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

More on cancer as a disability

Last week I wrote how businesses would likely see more employees claim cancer as a protected disability under the Americans with Disabilities Act. The EEOC proves my point. The agency recently announced that it has sued a Michigan company for failing to accommodate an employee who needed a reduced work schedule while undergoing cancer treatments:

According to the agency’s pre-suit investigation, Derek Nelson, who had been employed by IPC as a machinist for over ten years, went on medical leave in 2008 in order to undergo chemotherapy. The EEOC’s suit alleges that in January 2009, when Nelson sought to continue working part-time while he completed his treatment, IPC discharged Nelson for exceeding the maximum hours of leave allowed under company policy. That decision, the agency contends, violated IPC’s obligation to reasonably accommodate Nelson’s disability.

Meanwhile, in Boca Raton, Florida, a federal jury awarded Kara Jorud $8.1 million for her claim that Michael’s Arts and Crafts terminated her because of her cancer.   Ms. Jorud, suffering from breast cancer, had a double mastectomy and was ill from the follow-up chemotherapy. She claimed that her manager forced her back to work early following her surgery, required her to work while ill, and harassed her. The Palm Beach Post recounts Jorud’s manager telling her, “How often do you have to do this? You will be here on Monday after chemo.” LawyersandSettlements.com fills in the rest of the details:

In her lawsuit, Jorud said she had taken a six-week medical leave following her surgery, but within days the cancer patient began taking calls from her District Manager inquiring as to her return. Jorud was originally tasked to turn around the store’s reportedly failing operations.

Jorud returned to work less than a month after surgery because, she testified, she feared for her job.

At one point, the plaintiff brought her fiancé and his son into the store to help her shift inventory ahead of a pending delivery because she was weak from the aftereffects of chemotherapy. The cancer patient was fired three days later, reportedly one day before her next scheduled chemotherapy treatment.

The plaintiff was also accused of theft prior to her firing, a charge that Jorud later disproved and the district manager later admitted to be false, according to the newspaper account.

These cases should serve as a warning sign for employers dealing with employees with serious treatable illnesses. It is no longer enough to provide an employee the statutorily mandated 12 weeks of FMLA leave, or to merely follow one’s own leave of absence policy. Instead, as these cases illustrate, employers should consider reasonable accommodations such as part-time or modified work schedules.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

The best way to settle an employment case

Yesterday at Jottings By An Employer’s Lawyer, Michael Fox praised the Employment Law Group for announcing a jury trial loss in a blog post. You may be asking yourself why would a defense lawyer announce a loss. It’s what I call smart marketing. There are two things employment plaintiff’s count on to extort a high settlement: 1) a denied summary judgment motion with a firm trial date, and 2) cold feet by a business or its lawyer to take the case to a jury. If you want to obtain a fair settlement in your next employment case, hire an attorney with a proven track record of trying cases. Before you hire the lawyer to defend your next claim, ask him or her how many cases he or she has tried to a jury, and how long ago the last jury trial was.

There are very few things in the law that take more guts than taking an employment case to trial as an employer. No one wants a jury to resolve a dispute. Knowing that your lawyer has the confidence to try your case will give you the confidence to draw a reasonable settlement line in the sand. That line might be at or near zero. You should never pay more than you think a case is worth merely to avoid a trial. Knowing your lawyer can and will try your case for you will enable you to hold that line.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

If you can’t trust your son…. Multi-million dollar jury verdict for boss’s son’s theft of trade secrets

According to the Youngstown Business Journal, a federal court jury awarded Allied Erecting & Dismantling $3.046 million for claims that its president’s son, Mark Ramun, misappropriated trade secrets while working for a competitor, Genesis Equipment & Manufacturing. The article describes the dispute:

At the center of the dispute is a product Allied … developed…. Between 1992 and 2001, court papers say, Mark Ramun had access to “highly confidential proprietary information and documentation” related to the Allied MT while employed at the company. Those trade secrets, Allied alleged, were given to Genesis after the company hired the younger Ramun in 2003. Allied argued in its case that Mark Ramun kept nearly 15,000 documents that contained “a substantial array of highly confidential and proprietary information.”

There is a good lesson to be learned from this story. When there is money to be made, even those who you trust the most are apt to let you down. I don’t know what the relationship between senior and junior Ramuns was like (although I’m pretty sure they won’t be sharing a Thanksgiving turkey anytime soon). I am confident, however, that dad never for a second thought his son would divert confidential information to a competitor. Even those who you trust the most should be locked down with agreements, and diligently pursued when they breach your trust.
[Hat tip: Trade Secrets Blog]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

The dark side of discrimination litigation

The San Francisco Chronicle reports that a jury awarded a former applicant for a job a Lucasfilm $113,800 in damages on a pregnancy discrimination claim. The jury concluded that the media company withdrew its job offer to Julie Veronese after she disclosed her pregnancy.

This case proves two important points about discrimination litigation:

1. The smoking-gun piece of evidence in the case was an email Veronese's supervisor-to-be in which she expressed concern about Veronese's ability to do the job while pregnant. This case illustrates the dangers of email and proves the point that if you should not put in an email what you do not want shown to a jury or published in the newspaper.

2. Veronese's attorney is reported as saying that she will seek $1.2 million in attorney's fees from Lucasfilm. While the number is stagging, what is more staggering is that one can collect ten-fold in attorney's fees than what she recovered as damages in the actual litigation. Many claims carry risk for damages, and a six-figure verdict is nothing to sneeze at. The real risk in many discrimination lawsuits, however, is the attorney's fees that a successful plaintiff can recover. The risk of a fee award must play into the exposure calculus in strategizing the defense of any discrimination claim. Failing to take both the likelihood of a fee award and the potential amount of that award into account very early on in litigation could lead to an expensive surprise at the end of the case.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

When should you get an attorney involved with a problem employee? As soon as possible.

A few weeks ago I wrote about what employers need to know about EEOC investigations. I suggested that employers get attorneys involved “as early as the first receipt of the charge of discrimination.” West v. Tyson Foods (6th Cir. 4/15/10) (unpublished) [pdf] provides a great example of the importance of the early involvement of counsel.

Amanda West quit her job at a Tyson chicken processing plant after being subjected to more than a month of fairly pervasive sexual harassment. During her exit interview with Tyson’s HR manager, West talked about all of the harassment to which she had been subjected and that her supervisors failed to respond to her complaints. She also identified the perpetrators by name. The HR manager, however, did not conduct any investigation into the allegations until after Tyson received West’s EEOC charge. At trial, the court admitted into evidence the HR manager’s notes from the exit interview, along with its EEOC statement of position. That position statement falsely claimed that Tyson launched an investigation following the exit interview. From this evidence—along with the evidence of the harassment and the supervisors lack of response—the jury awarded West $1,281,636.58—$131,636.58 in lost wages, $750,000 for mental distress, and $400,000 in punitive damages—which the 6th Circuit affirmed.

What is the lesson here? Having an attorney draft the position may not have saved the day, but it would have certainly lessened the impact of Tyson’s involvement in the harassment. The misstatements in the position statement make it look like Tyson was trying to cover up what happened. That perception of a cover-up likely led to the high compensatory and punitive awards.

Nashville jury rejects associational harassment claim

If a white employee stands up for her black co-workers, and is then ostracized and called racially-charged names because of it, is she entitled to compensation for the alleged harassment? According to one Nashville jury, the answer is no.

In Barrett v. Whirlpool Corp. (6th Cir. 2/23/09), the 6th Circuit determined that an employee cannot pursue a claim for retaliation based solely upon a relationship to a co-worker who engages in protected activity. The court also remanded for trial the racial harassment claim of one of the plaintiffs, Treva Nickens. She claimed that after she spoke out in favor of black co-workers who had filed a race discrimination suit against Whirlpool, she faced routine racist slurs and graffiti (such as being called a “nigger lover”), was told that she should stay with her own kind, was disciplined more harshly than whites, and was passed over for a promotion. According to The Tennessean, the jury rejected Nickens’ associational harassment claim.

Despite the jury’s verdict on the specific facts presented by Nickens, the law remains that harassment as a result of one’s association with or advocacy for protected employees is just as unlawful as harassment directed at a member of a protected class.

Even though Whirlpool escaped liability in this case, employers should not read this verdict as a license to permit harassment against employees associated with employees in a protected class. Employers must treat all allegations and complaints of harassment seriously. Investigations should be timely and thoroughly completed. Policies should be reviewed and reinforced. Appropriate corrective action should in instituted where warranted.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

A cautionary lesson in litigation management

10 years ago, an Atlanta restaurant fired its highest ranking female manager. Last month, a federal jury finally dismissed her sexual harassment case. The latest verdict was the third handed down by a federal jury in the last five years. In the interim:

• The employer won the first jury trial in 2004.
• The employee appealed, and the 11th Circuit sent the case back down for retrial, but ordered a mediation before case could be retried.
• At the second trial, the employee won a $2.05 million verdict.
• This time, the employer appealed, and the 11th Circuit again sent the case back down for retrial, with yet another court-ordered mediation.
• Facing insurmountable defense costs and having to post a bond to secure the multi-million dollar verdict on appeal, the restaurant went into bankruptcy.

Law.com quotes the plaintiff’s lawyer, Edward D. Buckley III: “The moral of the story is that there is real value to settling these kinds of cases for both parties. That is something that there were many occasions when it could have occurred, but unfortunately it didn't. The 11th Circuit urged us to engage in meaningful settlement discussions. At least one of the district judges involved in the case urged us [to settle] and tried to facilitate that. Unfortunately, it didn't happen.”

Let this case serve a lesson for all businesses. This case spun out of everyone’s control – the lawyers and the parties. If everyone had put emotion aside (and their is no doubt that three trials and two appeals over 10 years is fueled purely by anger or spite, and not common sense and reason), the plaintiff would have realized that a guaranteed something is better than a roll of the dice, and the employer would have realized that paying a settlement is better than losing everything on principle.

I’m not arguing that the parties should have caved as soon as the case was filed. Indeed, some cases can only be resolved by a trial. After that trial, however, the parties should have listened to the court and viewed the verdict for what it was -- an opportunity to settle, not a reason to fight on.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

The swift hand of justice

Next time you consider whether you really want to litigate a case, consider the following case study.

On Friday, I reported about a case in which a jury vindicated a city administrator whose secretary accused him of sexual harassment for staring at her breasts. She filed her case in December 2002. In July 2006, the trial court dismissed the lawsuit on the employer’s motion for summary judgment. In February 2008, the court of appeals reversed that ruling. The trial was finally held on October 31, 2008, nearly six years after the case was originally brought. On Point reports this saga has cost the employer nearly $400,000 to defend. And, it’s not over yet. The plaintiff has filed a motion for new trial, and when that is denied, she’ll likely go back to the court of appeals. Everyone had their day in court, but at what cost?

Discrimination verdicts rise 70% in one year

Earlier this week I reported that fewer plaintiffs are winning their federal employment cases. Another study, however, suggests that those those are winning are winning bigger verdicts. Mark Toth at the Manpower Employment Blawg reports on a study released by Jury Verdict Research, which concludes that the median discrimination verdicts rose from $147,500 in 2006 to $252,000 in 2007, an astounding 70% increase.

The good news, however, is that employers really are better off in federal court, where they won 43% of the time, compared to only 34% in state court. And, in the cases won by plaintiffs, the median jury award in federal court was 22% lower than the median state jury award.

Is this increase a trend or an anomaly? It's hard to say. 2008 already saw the largest employment law jury verdict in the history of Ohio, $46.6 million. In a today's difficult economy, it is certain that more employment cases will be filed. It will remain to be seen if jurors who are facing their own tough economic times will continue to be generous.

'Tis better to be in federal court after all

I don't think I'm giving away any state secrets of the defense bar by saying that all told, employers would much rather be in federal court than state court. Federal court gives a better jury pool and a much better chance that a summary judgment motion will be granted. Now, a study commissioned by the American Constitution Society confirms this long held belief. According to the study, which was based on data from 1979 to 2006, plaintiffs who brought employment discrimination suits in federal district courts prevailed only 15 percent of the time, compared to 51 percent for non-employment related cases. Some other key numbers from the study:

• The filing of employment cases in federal court has dropped by 37% from 1999 to 2007.
• The courts of appeals reverse 41% of plaintiffs' victories in employment cases.
• The same courts of appeals only reverse 8.7% of defendants' victories in employment cases.

While comparable state court data is not available, it does not take a huge leap of logic to conclude that federal filings are down 37% because more cases are being filed in state court.

This study is not necessarily groundbreaking news, but it does underscore the importance of forum selection in an employment lawsuit, and the real value to a company to have its case heard in federal court.

[Hat tip: Legal Blog Watch]

Study suggests trials too risky; are lawyers really to blame?

It is no surprise that nearly 90% of all civil cases settle before they ever get before a jury. The New York Times is reporting on a study by Randall L. Kiser, principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions, who wondered if the decision to proceed to trial and forego settlement is the correct one in the 10% of cases that are tried.

In a study to be published in the September issue of the Journal of Empirical Legal Studies, he concluded that plaintiffs are much better off taking the offer that is on the table instead of risking it all by going to trial:

That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.

"The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more," said Randall L. Kiser. ...

Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

The article suggests that lawyers are to blame by not giving clients the proper advice. Our jobs, however, are not to make the decision for our clients whether to settle or try a case. In fact, it would be unethical to do so. Instead, our role is to provide our clients with as much relevant information as possible, lay out the risks and rewards inherent in the options, and let them make an informed decision. If we think they are making the wrong decision, our job is to try to persuade them to what we think the right decision is, until they either come around to our way of thinking, or we determine that they will not.

The article also suggests that lawyers are driven by high fees and not good results for their clients. I respectfully disagree. Clients are relationships, not cash cows that can be milked dry in every case. The best way to build such a relationship is not by draining every nickel from a client on every matter, but by being cost effective. Part of being cost effective is understanding when it is time to fish, and when it is time to cut bait.

46.6 million reasons to think about settlement

In the largest verdict Ohio history, and what might be the largest single-plaintiff employment verdict ever, a Cuyahoga County jury has awarded $46.6 million to Ronald Luri against garbage hauler Republic Services. Cleveland.com reports that Luri was fired after he refused to fire three employees in their 60s. The jurors reported that they were outraged by Republic's conduct after it fired Luri: "The jurors said the key piece of evidence was an email penned by Luri's boss, Jim Bowen, the Ohio area president. Attorneys Shannon Polk and Richard Haber presented a computer expert who found that Bowen had post-dated the memo and added two paragraphs critical of Luri's job performance two weeks after Luri filed the lawsuit."

There are many lessons to be learned from this story, but none more important than this - companies need to be aware of the risks that are inherent any time they step into the courtroom in an employment case. In Ohio, only 6 out of the 8 jurors must agree on the verdict. Of the 8 total jurors, it is a sure bet that at least 6 will more naturally identify with the employee than the employer, which means that the company is usually playing from behind.

Secondly, as far as employers are concerned, an employee's performance history must be frozen in time as of that employee's termination date. Nothing will anger a jury more than a company that looks like it is trying to cover its actions, either by destroying damaging documents or creating helpful ones. The shenanigans the jury found to have taken place after Mr. Luri was fired was a significant factor in the verdict, and if his personnel file was frozen on his termination date, I predict that the verdict would have looked much different.

Unsurprisingly, it is reported that Republic will likely appeal the verdict. Regardless of how much of the $46 million holds up, employers should use this information as a wake up call. Litigation is dangerous. Juries are unpredictable. Some cases cannot be resolved and need to be tried, but sometimes it's better to live to fight another day.

Some folks call it a jury verdict, I call it a lot of money

A federal jury in Forth Worth, Texas, has answered the age old question: How much is it worth if a female employee receives depraved and violent phone calls from a male co-worker for more than two years, in which he apes the voice of Karl from Sling Blade, threatening to kill her and cut her up. The answer: $15.6 million. On the up-side, the verdict was solely against the co-worker. The employer, American Airlines, was dismissed from the case.

The Star-Telegram has the details.