Guest Article: Jury Deliberations in Recessionary Times

The Anticipated Recession-Driven Increase in Employment Litigation:  What impact on jury decision making?

By:  John D. Gilleland, PhD

The legal news is replete these days with predictions of a coming rise in employment related litigation – stemming largely from the terminations, layoffs, and furloughs taking place throughout the workplace spectrum as employers cope with these harsh economic times.  But to a jury consultant the real issue is, “to what end?”  That is, what will jurors do when these cases finally come before them at trial, and will these upcoming cases somehow be treated any differently (by jurors) than the ordinary run of the mill pre-economic crisis employment dispute?

One possible answer can be extrapolated from what we already know about jurors and their reactions to employment disputes.  Over the years our research teams have identified a number of commonalities in what jurors sitting on employment cases attend to, and where they are virtually guaranteed to focus their attention in deciding whether the conduct of the defendant (and the plaintiff) justifies a finding of liability and/or damages.  As one might expect, these commonalities focus on both parties in the dispute, as the jurors strive to decide if wrongdoing has occurred.

Although every case is different, and there may obviously be key additional points within your fact pattern that jurors will hone in on, I can say without hesitation that jurors will at a minimum take into consideration the following five issues in their deliberative process.

1.      Whether or not the company policies and procedures were followed.

Jurors sitting on employment dispute matters are sticklers for following the rules, and mock juries and post-trial interviews have taught us they will be critical and unsympathetic to any employer who fails to follow their own internal guidelines.  Barring a precipitous event (like challenging a supervisor to a fist fight), jurors expect that, prior to taking action, the company will have the requisite number of warnings placed in the file, grievances will have gone up the change of command, and that generally the employee will have received his due process.

Much as with the old saw “follow the money,” jurors assigning causality tend to follow who had the knowledge of the problems and who had the ability to control the decisions being made; they want the plaintiff to have had the opportunity to correct his behavior and control his fate (as they would want if it was them, and their job on the line).  Jurors decidedly dislike termination decisions that seem to come out of the blue.  If the plaintiff was properly warned (had the knowledge), and failed to correct his conduct (control his destiny), then he probably deserved what he got.  Obversely, no notice of any issue the company may have had with his conduct, and no opportunity given to correct said conduct, are viewed as warning signs by jurors that the company may have had a different, and unfair agenda.

What potential impact for the recession driven employment dispute?  Jurors will undoubtedly recognize that these uniquely difficult economic times drove companies to make drastic corrections, such as legitimate reductions in force.  In such instances, violating internal policies will likely be excused, as jurors will recognize – having heard over and over of similar situations RIFs taking place with multiple other companies – that saving the company was the driving concern that necessitated action outside of the dictates of normal policy and procedure.

I suspect that a key plaintiff’s theme in these post recession matters will be that the employer utilized the economic downturn as an excuse to rid itself of employees it couldn’t otherwise legally discharge, and an examination of the company books – and whether or not the company really was experiencing significant economic problems – will be a key battleground that the jurors will zero in on at trial.

Employers also will have more difficulty when just one, or even a handful of employees were let go in this time frame, as jurors will wonder, why this employee and not another?  Still, if the timing and the company books are supportive of the need to “let go” a few select employees, jurors will be far more sympathetic than usual to the position the company was in, and they are much more likely than usual to excuse the failure to strictly follow company policies on warnings, grievance procedures, and the like.  That the company chose to let go this employee over another (with an even less exemplary record) might very well be excused by the jurors as part of the need to make a decision now rather than the need to make the perfect decision later, through a more exacting process.

2.      Whether or not the plaintiff availed himself of the employer’s protocol for dealing with perceived problems (complained to the proper people and at the proper time).

Jurors always examine the individual plaintiff under a very strong magnifying glass, and nowhere is that more true than in employment litigation.  If the plaintiff experienced workplace discrimination, jurors will always want to know what he did about it at the time of the alleged incidents, in a contemporaneous fashion.  The Johnny-come-lately complaint of race, age, or gender discrimination after the termination is always viewed by jurors with extreme suspicion, as nearly everyone on the jury will have experience with friends or fellow workers who played that sort of “card” after being let go by the company.

Jurors expect (and demand) that the plaintiff will have used the system to his or her advantage, that is, to have documented complaints with management about the conduct or issue in question.  Did the employee complain appropriately, that is, to the right people and at the right time?  Relating the story of the alleged discriminatory conduct to a fellow worker and friend who later testifies on your behalf can be important, but jurors will expect and would much rather hear evidence that you went through proper complaint channels with management if they are going to believe the discrimination actually took place.

What potential impact for the recession driven employment dispute?  Jurors may very well sympathize with individual plaintiffs who argue that they didn’t have time to avail themselves of the company complaint process.  If the termination came “out of the blue,” then how could they have been expected to know they needed to put the company on notice that such conduct was taking place?

Obviously, the timing of the alleged conduct will be figural in such instances, as jurors struggle to decide when the plaintiff should have first contacted management about the alleged discrimination.  Fortunately for the employer, jurors are very likely to try and put themselves in the plaintiff’s shoes, and consider what they would have done under similar circumstances.  The hindsight bias – whereby people always judge past conduct in light of what they know now, in the present – dictates that virtually everyone believes that if they felt slighted or discriminated against, they would have immediately marched into a supervisor’s office to complain.

Even for sudden terminations supposedly caused by the economic hard times, you can expect that, short notice of the impending termination or not, jurors will expect that the individual plaintiff should have complained of any perceived slights immediately after they occurrred.  Jurors will expect that any conduct that purportedly took place more than a few days before the termination notice would have (or should have) already been reported – that is, if it really happened.

3.      Comparison information:  How were other, similiarly situated employees treated?

Attribution theory, or how people assign causality to events, teaches us a great deal about why jurors in all types of cases jurors crave and actively seek out comparison information.  The process of deciding why something occurred – whether that be a firing or the breach of a contract – causes people to critically examine the context of the situation with an eye to identifying standards that they might be able to apply in reaching their decisions.  It is human nature to try to compare this situation with other benchmarks that may be out there; it is how we make sense of the world.  Psychologists often classify this search for additional useful information into three separate categories:  How were similarly situated others treated (consistency information)?   Did the plaintiff do something that was unique or out of the ordinary that led the company to judge him differently (distinctiveness information)?  Did everyone agree with the decision to terminate (consensus information)?

This has obvious implications for the typical employment dispute where jurors always want to know:  if others were fired too (consistency), what might the plaintiff have done to get himself fired (distinctiveness), and whether it was a unilateral decision by a boss with a grudge or did others at the company agree (consensus)?

What potential impact for the recession driven employment dispute?  Although jurors should, again, be more lenient in their evaluation of the company and its possible motives for firings that occurred during the recession, I would expect that this attributional process would continue on unabated – it is a relatively built in and often unconscious process that we go through when evaluating the person cues and contextual or situational cues present within any given scenario.  Jurors still will want to understand why this employee was chosen versus any of the others, and they will search the evidence for comparison information.

However, I would suspect they might also be more forgiving than usual if the information is lacking, as they will understand the decisions being made were “under the gun” and therefore may have been more arbitrary than if those same decisions had been made under more favorable circumstances.  Pre-recession, such an apparently arbitrary decision making style would undoubtedly have offended jurors and may have even caused them to side with the plaintiff.  Post-recession, the fact that the absolutely worst or most expendible employee did not get the axe may be forgiven – cuts had to be made, and although truly arbitrary decision making would offend jurors, having a less than perfect stategy should be acceptable, as long as there was a strategy in place.  For example, I could see a CEO getting away with the argument:  “…pre-recession, we would have taken the time to shift some people around and make more informed choices of how to salvage our business model, but during the recession, we just cut that one whole entire division – it was the simplest, and easiest course of conduct at the time.”

4.      How was the termination done?

Believe it or not, jurors always focus in on how the employee was notified of the dismissal and/or how the actual termination event took place, even though it rarely has any standing in the legal decisions being made (i.e., I’ve never seen a verdict question, “Was he fired or given notice in a hostile manner?”).  Although jurors intellectually understand the sometimes need to stand over the employee as he fills a box with his personal items, nothing angers them more than perceived rude treatment of the employee, especially a long-term employee.  If you think about it, no one wants to believe that their years of service might end in a five-minute emptying of the desk and a very public walk of shame past co-workers as they are escorted out of the office.

Terminations that are done respectfully and with grace are tolerated far better by jurors than the “don’t let the door hit you on the way out” variety, and jurors are usually much more understanding of the termination when the company has acted professionally and with regard for the employee’s feelings.  This is true even moreso when the employee has obviously done the company a grave injustice, such as stealing.  In those instances the jurors applaud the company for rising about pettiness – by all means tossing him out – but doing it politely and with professionalism.

What potential impact for the recession driven employment dispute?  Here is an instance where rude treatment of employees being downsized or RIFed due to the recession would truly offend jurors.  If the claim is that but for the hard economic times the employee would have been retained, then there is absolutely no reason to be curt or abrupt during their departure, and jurors would expect nothing less of the company than civil conduct.  One would expect that the anger that typically flashes for jurors when told of a less than courteous departure – perhaps orchestrated by a frustrated boss  would burn even brighter when the employee supposedly did nothing wrong except being on the low end of the totem pole when cuts had to be made.  Plaintiffs who were treated unkindly at the time of their severance should have a strong emotional card to play with the jury, even though it may have nothing to do with the legal decisions the jurors will face.

5.      Mitigation efforts by the employee.

As noted, we know that  jurors scrutinize the plaintiff and the plaintiff’s conduct very closely.  A failure to try to move forward following the loss of a job will almost always be viewed negatively by jurors, as they want the plaintiff to prove he is worthy of their respect.  Even the plaintiff who has put resumes out on the street with no results is viewed suspiciously by jurors, as they are almost always willing to say the plaintiff could have done more to find a new position.

The plaintiff who appears complacent, and to be waiting for a jury to hand them their just desserts, is often disappointed by the ability of the jury to see through them, and to judge just how undeserving they really are of such a windfall.  When such a plaintiff pleads financial ruin at trial, and that they and their family had to live a pauper’s life because of being turned out on the street by the defendant, jurors are quick to disagree, reasoning they would have taken any job if it made the difference between putting food on the table and going hungry.

On the flip side, the plaintiff who has clearly been out there looking for employment with his or her best efforts, or who has actually found a new job, will be fare much better with jurors.  Jurors appreciate effort being put in by the plaintiff – and will be critical of anything less than an honest attempt to make the best of a bad situation.

What potential impact for the recession driven employment dispute?  Losing a job during this recession should make it easier for plaintiffs to claim an inability to find a suitable new position, as everyone knows just how hard it has been for those being downsized to locate new gainful employment.

Although jurors are likely to continue arguing the plaintiff should take any position to offset their situation – and the effort or lack of effort he puts in to do so will be duly noted – those same jurors should also be much more forgiving of the inability to actually find a job, as they will blame the economy as much or more than they will blame the individual.

Will the current recession play a role in how jurors decide future employment litigation issues?  Undoubtedly.  But probably in ways that can be anticipated, and perhaps even influenced, with presentation themes that are geared to appeal to known juror decision making processes.

Dorsey & Whitney

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