AUGUST 2005
Employment Law
Tips from a Discrimination Jury Trial in a Multi-Racial/
Multi-Ethnic Big City Courtroom
The conventional wisdom in employment cases is
that jury trials should be avoided by corporate
defendants if at all possible, especially in large
urban areas. This is particularly true where a discrimination claim has been filed by a plaintiff who
is a member of a racial minority group and the
urban area is downtown Los Angeles where the
jury pool is one of the most diverse in the United
States. A recipe for a defense disaster? Not necessarily so. In fact, after a two-week trial, the Los
Angeles office of K&LNG recently convinced a
jury on behalf of our client, a large entertainment
conglomerate, that it did not discriminate against
the plaintiff. Here are a few tips about trying a
case before an urban jury that may be of value to
other corporate defendants facing trial.
BACKGROUND FACTS
The case was brought by a gay Filipino plaintiff
who alleged that he was terminated from his position as a casting director because he had a strong
foreign accent. While our client was not his primary employer (he worked for a production company making a television show for broadcast on
our client’s network), we carried the burden of
defending the case. Our client asserted that plaintiff had failed to perform satisfactorily and that his
accent and national origin were irrelevant to the
decision to terminate. No bona fide occupational
qualification defense was raised because unaccented speech was not a job qualification.
GUT CHECK
Following the denial of its motion for summary
judgment, our client, like many other defendants,
faced the prospect of having to settle the case or
go to trial. Plaintiff demanded a settlement in the
high-six-figure range, making settlement unattractive from an economic standpoint. His case, how-
ever, was not frivolous. Not only did he have some
evidence that arguably tended to support his claim
but he was represented by an attorney with significant trial experience. Moreover, plaintiff knew
that he was likely to be able to select jurors from a
pool full of people from racial and ethnic minority
groups, many of whom had some form of accent.
Thus, our client had to decide whether to settle or
risk the possible wrath of a Los Angeles jury if
they found it had acted wrongly. It chose the high
road and refused to pay unwarranted sums to settle a case where it believed it had done nothing
wrong. Our client decided it had to send a message to potential plaintiffs (and their attorneys)
that it would not pay big-dollar “nuisance” settlements.
Tip No. 1 Corporate defendants must be willing
to draw a line in the sand beyond which they will
not be pushed, especially where they believe no
wrongdoing occurred. Certain corporate defendants get the reputation of being a “soft touch”
when they repeatedly settle claims for “nuisance”
value (which, in the Los Angeles area, can range
from $20,000 to $100,000) and they find themselves the victims of repetitive lawsuits.
JURY SELECTION
The jury pool was quite diverse in Los Angeles
Superior Court. Among the approximately fortyfive jurors brought to the courtroom, there were
numerous members of racial and ethnic minorities,
nearly half were women, at least four were openly
gay, and approximately 20 percent of the jurors
had some accent. During voir dire, many prospective jurors stated that they either had been
accused of discriminating against others or
believed they were the victims of discrimination,
including age, national origin, race, and gender dis-
Kirkpatrick & Lockhart Nicholson Graham
LLP
crimination. One woman believed she had suffered discrimination on multiple occasions because
of her Middle Eastern accent.
The jury panel was very open about discussing the
subject of discrimination. They responded candidly to questions like: How did you feel when you
were accused of discrimination? How did you
defend yourself when you were accused of discrimination? What did you do when you believed
you were discriminated against in order to have
your accusations addressed by the employer? Do
you believe that an employee who is having performance problems will sometimes respond by
accusing the supervisor of discrimination? Do you
believe that before you accuse somebody of discrimination you should have pretty good evidence
to support your claim? Do you think it is wrong to
ask a person with an accent to repeat him/herself if
you are unable to understand what they are saying?
Tip No. 2 Do not dance around the issues of
race/ethnicity/accent in front of the jury on voir
dire. Address the issue squarely. Do not stereotype
jurors. Every one of the jurors we selected who
had an accent voted in favor of our client (the jury
was polled following the verdict). Three of the
four Hispanics and the only Asian on the jury
voted in favor of our client. The jurors we eliminated were those who showed bitterness about
their experiences with discrimination. The key
was finding jurors who were relatively educated,
who had fairly steady employment, and who had
been around Los Angeles long enough to know
that, for the most part, it is a tolerant city that generally judges people on the merit of their performance and not by their color, ethnicity, accent, or
national origin.
CROSS-EXAMINATION OF PLAINTIFF
It is common in discrimination cases to “walk on
eggshells” when cross-examining the plaintiff,
seeking to avoid being too aggressive with a person who is already claiming to have been victimized. We decided to politely but firmly “go for the
jugular,” pointing out all of his deficiencies and
shortcomings. We pointed out his resume puffery,
his unsavory prior experience casting transgender
models for “fashion shows,” and his filing of tax
returns that did not square with his description of
his prior lucrative employment. We forced him to
tell the jury that he had trouble “admitting mistakes.” We also did not hesitate to bring out relevant testimony bearing on plaintiff’s credibility,
even though some of that testimony involved his
2 AUGUST 2005
sexual orientation and several of the jurors were
gay men.
Tip No. 3 Comprehensively and thoroughly crossexamine the plaintiff, but be as polite as possible
under the circumstances. Jurors understand that it
is the responsibility of defense counsel to zealously examine the plaintiff, challenge his/her credibility, and bring out all of the weaknesses in plaintiff’s case. While jurors do not expect defense
counsel to be rude or overly aggressive, they
understand the need for thorough and sometimes
embarrassing cross-examination as a part of the
defense. Several jurors indicated post-trial that
they expected plaintiff to be subjected to stiff
cross-examination.
WITNESS CREDIBILITY/JURY INSTRUCTIONS/
SPECIAL VERDICTS
It is said that jurors in discrimination cases often
“go with their gut.” Our experience has been different. The jurors specifically stated post-trial that
the most important factor influencing their decision was witness credibility. Additionally, the
jurors listened carefully to the jury instructions.
Plaintiff tried to convince the judge that one of the
instructions should provide that discrimination
based upon a Filipino accent was sufficient to constitute liability. We countered that defendants had
to have the intent to discriminate based upon
national origin as a result of the accent. While this
was not the pivotal instruction in the end, it nevertheless was something that we were able to argue
to the jury in closing argument to counter plaintiff’s persistent theme that, if he was fired because
of his accent, defendants were automatically liable.
Moreover, conventional wisdom has also been that
a more detailed special verdict form favors the
defendant because it forces jurors to go through
the steps and analysis necessary to reach a reasoned decision. While these practices may apply in
some circumstances, we do not believe they are
applicable in every discrimination case. We opted
for a simple four-question special verdict for each
defendant, relying on the “keep it simple stupid”
philosophy to avoid confusion and enable the jury
to focus on the big picture.
Tip No. 4 Do not assume that jurors are stupid. If
you are careful in the jury selection process, the
majority of jurors you select will know their
responsibilities and will try to follow the judge’s
instructions to reach the right result. Most importantly, if defense counsel has reminded them
(repeatedly) that plaintiff has the burden of proving that his version of the facts is more likely than
not the true facts, jurors will keep this in mind in
KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP
weighing the evidence. When we interviewed
jurors following this trial, we learned that they had
been able to spot all of the strengths and weaknesses of the witnesses and each side’s case. Their
number one factor in deciding the case was witness credibility.
court, picks a reasonably educated jury, firmly
challenges plaintiff’s version of the facts, puts on a
legitimate defense through credible witnesses who
level with the jury, and sees that the jury is properly instructed, then the likelihood of a successful
outcome will increase substantially.
CONCLUSION
While jury trials in multi-racial/multi-ethnic big
city courtrooms can be nerve-racking and present
unique challenges, if a defendant in an employment case resolves to vindicate its position in
Boston
Henry T. Goldman
Mark D. Pomfret
Jaime Ramón
Carleton O. Strouss
Paul Callegari
Thomas H. Petrides
Paul W. Sweeney, Jr.
April L. Boyer
Carol C. Lumpkin
Michael C. Marsh
Rosemary Alito
Vincent N. Avallone
Marilyn Sneirson
Eva M. Ciko
Linda L. Usoz
Stephen M. Olson
Michael A. Pavlick
Hayes C. Stover
Jonathan M. Cohen
Lawrence C. Lanpher
Jeffrey B. Ritter
Dallas
Harrisburg
London
Los Angeles
Miami
Newark
New York
Palo Alto
Pittsburgh
San Francisco
Washington
Paul W. Sweeney, Jr.
psweeney@klng.com
310.552.5055
617.951.9156
617.261.3147
214.939.4902
717.231.4503
+44.20.7360.8194
310.552.5077
310.552.5055
305.539.3380
305.539.3323
305.539.3321
973.848.4022
973.848.4027
973.848.4028
212.536.3905
650.798.6702
412.355.6496
412.355.6275
412.355.6476
415.249.1029
202.778.9011
202.778.9396
hgoldman@klng.com
mpomfret@klng.com
jramon@klng.com
cstrouss@klng.com
pcallegari@klng.com
tpetrides@klng.com
psweeney@klng.com
aboyer@klng.com
clumpkin@klng.com
mmarsh@klng.com
ralito@klng.com
vavallone@klng.com
msneirson@klng.com
eciko@klng.com
lusoz@klng.com
solson@klng.com
mpavlick@klng.com
hstover@klng.com
jcohen@klng.com
llanpher@klng.com
jritter@klng.com
MIAMI
■
www.klng.com
BOSTON
■
DALLAS
■
HARRISBURG
■
LONDON
■
LOS ANGELES
■
■
NEWARK
■
NEW YORK
PALO ALTO
■
PITTSBURGH
■
SAN FRANCISCO
■
WASHINGTON
Kirkpatrick & Lockhart Nicholson Graham (K&LNG) has approximately 1000 lawyers and represents entrepreneurs, growth and middle market companies,
capital markets participants, and leading FORTUNE 100 and FTSE 100 global corporations nationally and internationally.
K&LNG is a combination of two limited liability partnerships, each named Kirkpatrick & Lockhart Nicholson Graham LLP, one qualified in Delaware,
U.S.A. and practicing from offices in Boston, Dallas, Harrisburg, Los Angeles, Miami, Newark, New York, Palo Alto, Pittsburgh, San Francisco and
Washington and one incorporated in England practicing from the London office.
This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied
upon in regard to any particular facts or circumstances without first consulting a lawyer.
Data Protection Act 1988—We may contact you from time to time with information on Kirkpatrick & Lockhart Nicholson Graham LLP seminars and with
our regular newsletters, which may be of interest to you. We will not provide your details to any third parties. Please e-mail cgregory@klng.com if you
would prefer not to receive this information.
© 2005 KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP. ALL RIGHTS RESERVED.