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In job discrimination trials, the juror’s occupation and work history can be the single most important factor that determines how the juror perceives the evidence and evaluates the case. In the booming economy of the past 10 years, it has been hard for plaintiffs’ lawyers to put together a jury stacked with disgruntled, out-of-work citizens looking for a chance to sock it to big business. Now that the job market is becoming less friendly and the panel of potential jurors is less likely to be composed of busy, satisfied workers, the process of picking a winning jury becomes that much harder for defense counsel. More than ever, building the winning jury depends on understanding each potential juror’s unique notion of justice in the workplace. There is no better gauge than examining each juror’s personal work history and experiences. In some ways, finding the right employment discrimination jury is similar to jury selection for other types of litigation. Each potential juror brings a wealth of strongly held beliefs formed by a lifetime of experiences. These beliefs and experiences are the prism through which the jury will interpret every piece of evidence and every argument. Picking a winning jury depends on understanding how each venire member will react to a particular case. Unlike trials over personal injuries or business disputes, every discrimination case gives the jury the chance to second-guess managers’ decisions about how to treat employees in the workplace. This is true regardless of the type of discrimination claimed. The plaintiff may be a 61-year-old man complaining that his layoff was based on his age, or a 25-year-old woman alleging that she was subjected to sex harassment in the workplace and that her company failed to put a stop to it. In each case, the key issue at trial is how the defendant’s management made its decisions, and whether the decisions were based on impermissible factors, such as sex, race, age or disability status. Another important issue in most discrimination trials is what the plaintiff has done to help himself. Did he bring about his own discharge through poor work performance or misconduct? Has he made reasonable efforts to mitigate his damages by looking for work elsewhere and holding down a job? IDEAL JURORS FOR EACH SIDE The plaintiff’s theme in most discrimination trials is the same. The plaintiff is a good, hardworking, loyal employee who deserved to be hired/promoted/not fired/not subjected to harassment. The defendant’s managers are bigots, sexists, ageists and liars who have proffered a false explanation for why they harmed the plaintiff. The plaintiff would obviously prefer to have jurors who are willing to substitute their judgment for a manager’s, decide the manager is lying and at the same time accept the plaintiff as an innocent victim. The ideal juror will approach the defendant’s explanations for its decisions with skepticism, and even hostility. Yet this juror will not question the plaintiff’s testimony about her emotional injuries and loss of wages due to the defendant’s conduct. The defense wants jurors who will believe and accept management’s nondiscriminatory explanation for the decisions that the plaintiff complains about without question. The defendant’s theme is usually that the plaintiff brought about his own bad situation through ineptitude or misconduct or just plain bad choices. Defense jurors approach the case with the mindset that everyone is responsible for his or her own problems. If the plaintiff got fired, she probably deserved it. If a disabled plaintiff could not do his job anymore and complains that his company should have accommodated him with a different job, the defense juror says, “tough luck,” but not the company’s fault. How do winning lawyers screen out the nightmare jurors and try to pick their ideal jury? Given the limited amount of information most courts provide to counsel, and the limited voir dire most courts permit, most lawyers fall back on occupation, geography and obvious characteristics that the potential jurors may share with the plaintiff or key defense witnesses. Geographic factors are similar for most types of litigation — plaintiffs prefer more liberal, urban jurors, while defendants count on the typical conservatism of the rural citizen. Jurors’ personal similarities with key witnesses or parties are also used by virtually all trial lawyers. In a discrimination trial, if a key defense witness — the alleged harasser or the manager who refused to promote the plaintiff — is a 35-year-old male engineer, the plaintiff’s counsel is likely to consider striking people like that from the panel. Finally, one of the key things to find out on voir dire is whether any potential juror has himself filed charges of discrimination against an employer, or been accused of discrimination or unlawful harassment by a co-worker. How does the juror’s occupation fit into the mix? Seasoned defense counsel report that in most types of discrimination trials, the final deciding factor for most strikes is the panel member’s job. In many cases, the juror’s job and work history are the best predictor of where the juror will fall on the scale between unquestioning deference to the defense manager’s right to make workplace decisions, and outright animosity toward big business and its managers. Defense counsel is looking for managers first, and people who work (or have worked) very hard for a living, preferably in a non-union environment. Plaintiff’s counsel is looking for jurors who have been ill-treated by the system and resent big business and management in particular, such as laid-off workers. Plaintiffs also favor the unemployed and professionals, nurses and teachers, who will not defer to the defendant’s manager’s judgment but will make their own decisions as to what should have been done for the plaintiff. BUSINESS OWNERS, MANAGERS A juror who owns her own business is ideal from the defense perspective. She knows that in her world, which is the real world, decisions to hire and fire and promote are based on merit because she cannot afford to do otherwise. In her world, good employees are hard to find, and no rational business owner fires a good worker because of discrimination. She views the specter of being hauled into court to face a multimillion-dollar lawsuit based on one of her workplace decisions with horror. Savvy plaintiffs’ counsel use voir dire to find out if any member of the panel has ever owned a business, or has a close relative who has owned a business. These jurors can be a plaintiff’s worst nightmare, because they can be people of any age, race or sex. This juror may even be someone plaintiff’s counsel was counting on to lead the charge for a big verdict, perhaps because of that person’s current occupation or his resemblance to the plaintiff in age, sex or race. One experienced plaintiff’s counsel found out the hard way. He relates that in one trial of a Family and Medical Leave Act case, he thought he had a pretty good jury. It included a female nurse, whom he expected to be sympathetic to the cause of his client, a woman of approximately the same age and race as the nurse. After the jury returned a defense verdict, the plaintiff’s counsel interviewed some of the jurors. He found out that the nurse was the daughter of small business owners and that she was one of the strongest advocates for the defense in the jury room. For reasons that should be obvious, it is highly advantageous to the defense to have one or more managers on the jury. Managers are used to making decisions, including tough personnel decisions, and do not like the idea of having their own decisions second-guessed by a jury somewhere. They are likely to be sympathetic with the defendant’s key witnesses. And managers are more likely to be influential on other jurors’ decision-making. Absent some striking reason, such as a manager who has himself filed a charge of discrimination against his employer, plaintiff’s counsel typically wants to strike any and all managers on the panel. THE UNEMPLOYED Some of the hardest jurors to predict are those who write on the questionnaire, “Occupation: none.” This juror may be retired, temporarily unemployed for personal reasons, laid off or fired and unable to find work, unable to work for medical reasons, a full-time homemaker or even independently wealthy. Unless the court allows individual voir dire on the potential juror’s work history and reasons for not being employed, counsel is in the dark. Absent compelling reasons to the contrary, many trial lawyers who represent defendants will strike the unemployed from the panel because it is simply too risky to keep them. If the juror has never been employed, she may not be responsive to the defense’s argument that the plaintiff failed to meet her employer’s expectations. If the juror was fired or had some other bad experience with management, he is likely to sympathize with the plaintiff. How can defense counsel predict how this juror will respond to counsel’s arguments? On the other hand, there is little down side for the plaintiff in keeping the unemployed citizen on the panel, so long as his residence location does not highlight him as a well-off individual who is likely a former manager or executive. The unemployed juror is less likely to be angry about being called for jury duty and to blame the plaintiff for the inconvenience than a juror who has been called away from the type of work in which jury duty means no earnings for every day of trial. UNION MEMBERS, CIVIL SERVANTS The juror who works either under a collective bargaining agreement or under the regulatory protection afforded to most civil servants brings unique issues to the table. His or her value to the defense or the plaintiff depends in large part on the specific issues in the particular case at hand. Plaintiffs’ counsel who automatically assume that a union member will help the plaintiff’s cause can be burned. Likewise, defense counsel can find a winning case torpedoed by a juror with the mindset of a represented worker or a civil servant. While the unionized worker is typically sympathetic with other workers and strongly advocates the worker’s rights over management prerogatives, he will likely view the evidence through the prism of his life experiences in a union shop. He may assume that the work rules that he takes as a given apply to every worker regardless of whether they are under a collective bargaining agreement. Most significantly, defense counsel can gain a huge advantage from having a strong union or civil servant seniority advocate on the jury if the defense can point to how the decision the plaintiff calls into question in the case benefited a worker with more seniority. In a recent race discrimination trial, the plaintiff thought she had a home run. She was a manager of many years and she had been demoted by a white male manager who had a record of being disciplined for a racist, sexist comment. Knowing that there were several active and retired union workers on the jury, the defense called to the stand the sole manager in the plaintiff’s department who had been retained in management when the plaintiff and two others were demoted in the reduction in force. As it turned out, this sole remaining manager had far more years with the company than the three who were downgraded. Never in a million years were union jurors going to be convinced that the plaintiff was demoted because of her race. The jury returned a defense verdict. In a recent disability discrimination trial, one plaintiff’s attorney reports, the presence of a union member hurt the plaintiff’s cause. The plaintiff claimed that after she had been out of work on an approved leave of absence because of a disability, the company failed to let her return to work because it continued to regard her as disabled and simply did not want disabled workers coming back. The defense argued that an ambiguous series of letters back and forth between the plaintiff and her supervisor showed that the company would have let the plaintiff come back to work, but she simply failed to come back. The plaintiff, who was a manager, argued that the letters were not clear and that she never received a clear indication from the company that she was permitted to return to work or which store she would be assigned to manage. The jury ruled for the defense. One juror, a lifelong unionized worker, told the plaintiff’s counsel that he voted for the defense because he thought the plaintiff should have simply showed up at work and started working. In his personal experience, that is what employees at his company do because of the terms of their collective bargaining agreement. He completely disregarded the plaintiff’s testimony that she was waiting for clear orders as to when and where to report to work. Thus, plaintiffs’ counsel must beware the union worker or civil servant on the jury who assumes that the plaintiff has the same rights as he does and that the plaintiff’s workplace is governed by the same rules as the juror’s. In the right case, a worker with a union mindset can seriously hurt the defense on damages. In the union setting, a worker who wins an arbitration for wrongful dismissal typically expects to receive full back pay for the period spent out of work. Most union members would find it perfectly reasonable for any plaintiff to sit at home and wait to be recalled after layoff, or wait to be reinstated after a wrongful dismissal, without going out into the workplace and finding alternative employment. Thus, the common defense theme that the plaintiff failed to mitigate damages by seeking and holding work before trial will not go over well with this type of juror. PROFESSIONALS: UNPREDICTABLE Professionals, too, can be a mixed bag as jurors. Doctors, lawyers, teachers, accountants, nurses and the like bring their own issues to any case. The doctor or lawyer who is also a small business owner or who is responsible for managing others is typically good for the defense and bad for the plaintiff. But in a sex or race harassment case or any other case in which defense counsel is trying to minimize the harshness of what may seem, to the white-collar professional, to be extremely ugly conduct, the defendant will typically look to avoid professionals on the jury. In most cases, plaintiffs’ counsel likes to find teachers and nurses on the panel. Teachers tend to be much more willing to substitute their own judgment for the judgment of a defense manager, much to the detriment of the defendant’s case. Nurses are likely to be more empathetic than the average person with the injuries the plaintiff has suffered, and more judgmental and willing to punish the defendant for causing the injuries. In addition, nurses, as a profession, make a habit of believing the statements of their patients concerning the source of their injuries. Defense counsel will be trying hard to portray the plaintiff as someone who is misrepresenting his or her injuries and their cause. Thus, most management-side trial lawyers will avoid nurses on their juries. It might seem like an obvious proposition that the plaintiff would prefer to have members of the plaintiff’s own occupation on the jury, and the defense would prefer to avoid it. Certainly, one of the plaintiff’s counsel’s primary goals is to pick jurors who will identify with the plaintiff. In the right kind of case, however, this tactic can backfire. If the evidence in the case is going to show that the plaintiff behaved unprofessionally, or has poor professional skills, the defense is better off with members of that occupation on the jury. In any occupation, there are certain unpardonable sins that are better understood by the members of that profession. For example, the salesman who was laid off because of poor sales performance is going to have a hard time convincing the sales representative on the jury that sales numbers should be disregarded. Likewise, the secretary who was laid off for economic reasons will find little sympathy with the secretaries on the jury when they see her resume and correspondence are messy and full of typographical errors. In sum, occupation often provides a window into the juror’s mindset, assumptions and expectations about workplace behavior. When the jury is going to be asked to impose workplace justice, the lawyer who is guided by the juror’s own lifetime of work experiences is going to be the better predictor of winning juries. M. Frances Ryan is a partner in the labor and employment group in the Philadelphia office of Dechert. The firm represented the defendant in the race discrimination trial described in this article. Because of client confidentiality concerns, the parties cannot be identified. The other trials were described to the author by the plaintiffs’ attorney, who wishes to remain anonymous.

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