What are My Chances of Winning?

Posted on November 20, 2009 by Patrick Smith

 

Understandably, this is the most important question a client will ask his lawyer when deciding whether to settle a lawsuit or defend the case at trial.   It is also one of the most difficult things for lawyers to predict.   That's why jury verdict research is so valuable, and why this post at Manpower Employment Blawg is a must read for employers and HR professionals.    It turns out that 2009 was not a very good year at the courthouse for employers defending employment related lawsuits.  Here is a summary of the some of the jury verdict data:

  • The median jury award in discrimination cases rose 16%, from $208,000 to $241,119.
  • Employers won 39% of the time (or lost 61% of the time, depending upon your perspective).   In age cases, employers were successful only 33% of the time, and in disability cases, 52% of the time.
  • Age discrimination claims resulted in the largest verdicts, followed by disability, sex, and race.
  • Employers are generally better off in federal court: they won 43% of the time there, versus 37% of cases in state court. The median award was also lower in federal court ($164,925 vs. $270,000). Federal Court is also more favorable for employers because of the relatively high percentage of cases for which summary judgment is granted.
  • The median settlement amount for all cases: $90,000, 20% higher than last year.  

 

 

 

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E-mail as Evidence Isn't Everything

Posted on November 12, 2009 by Patrick Smith

One of the biggest worries of lawyers defending against employee lawsuits is the stray statement in an e-mail that can be blown up or taken out of context.    We are constantly warning clients that, before they click "send",  they should think about how an e-mail will look to a jury. 

However, the recent acquittal of two former Bear Stearns executives accused of securities fraud provides an important lesson on the limitations of e-mail as evidence.   The government's case against the Wall Street executives relied heavily on statements they made in e-mails.   It seems the strategy backfired, and the e-mail turned out not to be the holy grail the prosecutors thought it would be.  According to one lawyer,  the "texting, twittering, Blackberry toting jurors of today understand that an e-mail capturing a concern, doubt or momentary distress does not reflect thought over time, much less a vetted public statement,  "Skilled lawyers can help pull some of the sting out of the most seemingly damning emails, it seems, by working hard to place them into a broader context."  

While it is still a good idea to think twice before clicking "send", it it good to know that common sense and context is capable of overcoming a damaging e-mail statement. 

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Weekly Web Roundup: November 6, 2009

Posted on November 6, 2009 by Patrick Smith

Thanks to Molly DiBianca of the Delaware Employment Law Blog for including us in the 2009 list of Top Employment Law Blogs.  One of the things I have most enjoyed since launching this blog last April is the collegiality among bloggers and the willingness to share ideas and information. 

Always a good source of practical information, the HR Daily Advisor had two posts this week  dealing with employee's abuse of FMLA leave.   The first addressed the abuse of intermittent leave, and the second tackled the problem of "pattern absences" (such as taking leave on Mondays or Fridays). 

Jon Hyman at Ohio Employer's Law Blog discusses an interview with Phillies' starter Cole Hamels after game 3 of the World Series.   Media reports of the interview contained a quote from Hamels that made it appear he had given up on the Series after his poor game 3 performance.   When considered in the context of the entire interview, however, it was clear Hamels was looking forward to the opportunity to redeem himself in game 7 (alas, a game which never was played).    The lesson for employers: be careful what you say and how you say it, because it is easy to take words out of context, especially for cross-examining lawyers. 

Megan Erickson of the Social Networking Law Blog has two recent posts (here and here) on factors employers should consider before drafting a social networking policy.   With the explosion in social networking over the past year, this has become a hot topic for employers.   See our related posts on this subject here and here.

H1N1 seems to have subsided among school age children in the local area, but now is hitting more adults.   The Washington D.C. Employment Law Update reports that two members of the House of Representatives have introduced a bill that would permit employees five paid sick days if they contract H1N1.  The Emergency Influenza Containment Act would apply to employers with fifteen or more employees.  It would permit both full and part time employees to be paid if sent home by their employer because of the flu. 

Finally, are employers under siege by the EEOC?  This post on Workplace Prof Blog reports on a human resources meeting in Detroit where many attendees reported facing EEOC charges for the first time.   The EEOC denies it is cracking down.   However, there is little doubt that charge statistics are up, and the EEOC's own press releases report the filing of substantially more lawsuits now as compared to one year ago. 

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