Lessons Learned from Trial This Week

Although we know it, we are always reminded after a trial of just how much sympathy a jury can conjure up for a Plaintiff who is clearly lying.  We were pleased to receive a defense verdict this week in a sexual harassment case.  The Plaintiff testified to numerous incidents of inappropriate touching by her co-worker/Defendant, and she complained that management would not do anything to stop the harassment. Although Plaintiff stated in her complaint, and again in her deposition, that the harassment began in 2004, she forgot the fact that she had hired the Defendant to come into her home throughout 2004, 2005, and 2006 to do handyman work.  When she realized the contradiction, she changed her story to state that the harassment began at the end of 2006.  We impeached her with her deposition, but she simply claimed that she was mistaken about the dates.
Now, although it was clear to us that Plaintiff was making up the entire harassment story, we had an inclination that it was best not to attack her.  After all, at her deposition, she came across as a sweet lady. At trial, she was far more angry, but the jury did not seem to mind.  So, instead of attacking her, we used the approach of admitting that Plaintiff suffered severe emotional distress.  However, we argued that this distress was caused not by our client, but by Plaintiff’s troubled family life.  Throughout the time period of the alleged harassment, Plaintiff had to care for a brother and a sister with mental illness, both of those siblings died, and she had to watch a son go to jail for armed robbery.
Apparently, the soft approach to the Plaintiff worked.  We learned from jurors after the trial that they indeed felt quite sorry for the Plaintiff.  They believed that she had suffered greatly and was telling the truth about her depression, crying, and overall despair.  Nevertheless, they did not believe that the Defendant caused the suffering.  We were convinced by these statements that had we taken a hard-line approach against the Plaintiff and painted her as a liar about both the harassment and the emotional distress, we may have had a different outcome at trial.  Sometimes both the attorneys and the clients can be so close to the case, and so biased against a Plaintiff whom we know is lying, we forget the sympathy that jurors can have for these sometimes pitiful former employees.  There is a time and place for attacking a lying Plaintiff, but showing a little compassion just might win the jury to your side.
Post by Heather Saum Ware

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