Workplace Strategies Watercooler 2025: When Good Cases Go Bad—Top HR Mistakes Leading to Big Jury Verdicts

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James Paul: Hello, everyone. This is James Paul at the Ogletree Deakins law firm. I practice in the St. Louis, Missouri, office and the Tampa, Florida, office. I also practice in the state of Illinois. We are at Workplace Strategies 2025 in Las Vegas, Nevada, and we gave a presentation this conference with regard to large runaway jury verdicts and how to avoid them, and the best tips and practices for trying not to be in that position where you’re having to defend a claim that may or will go to trial and may result in a large or runaway jury verdict. I have with me today a great colleague, Vince Verde, in the Orange County, California office, as well as Julianne Pinter in the Torrance, California office. They practice mostly in California, but also around the nation. Among all three of us, we’re part of the Ogletree Deakins’ Trial Practice Group, and we’ve tried collectively over 100 jury trials. We’ve seen lots of different variations, some that work and some that don’t work so well, at a jury trial. But Vince, do you want to talk about some statistics that you’ve seen and pulled?

Vince Verde: Yeah. Yeah. Thank you very much for inviting me here. We’ve seen a greater trend on really nuclear verdicts in the last few years. Today we’ll be talking about some verdicts that are $21 million, $22 million, $36, and $900 million jury verdicts, and got to thinking: how did we get to this point where these verdicts are just becoming astronomical? What I’ve seen is, and I’ve talked to a lot of jury consultants, and I’ve seen this in my practice, as well, and I’ve studied other verdicts that have gone out, it’s a greater distrust between employees and employers. Jurors, obviously, most of them are employees as opposed to employers. This comes about through the COVID pandemic. There was an inequity; there were large inequities that have occurred during the pandemic, where jurors tend to be not in the upper strata of management, being treated less fairly than the white-collar workers of management.
Those inequities have led to these jury verdicts that have been kind of crazy. We did a lot of studies on jury attitudes post-pandemic, and what was really interesting is some really interesting facts where 63% of jurors felt that if it gets to the point of trial that the case must have merit, which is a really interesting case because usually cases go to trial because of various reasons. Sometimes we weren’t able to resolve it, and because it’s going to be some astronomical demand by the plaintiff. But also, when it gets to that point, you have 68% of folks that tend to believe an employee over employer. As defense lawyers, we need to be really cognizant of these attitudes. One of the reasons is 60% of jurors believe that they’ve been either lied to or misled by their employers. Really, really interesting statistics all coming from, I believe, the COVID inequities.

James Paul: One important thing that we all talked about and we’ve all experienced, jurors assume that every witness at a trial is not telling 100% truthful information. It really sometimes becomes a battle of who the jury thinks is lying the least. Right, Julianne?

Julianne Pinter: Absolutely. I think credibility is key, and that goes not only for the witnesses but for counsel, as well. What I’ve been seeing are these crafted narratives from plaintiff’s counsel, which the jury, when they first hear it in an opening statement, and maybe they hear it throughout the case, they carry it through into the jury room. But the key for us is to be able to basically blast holes in that narrative. The more we do that, the more we have the opportunity to avoid these verdicts.

Vince Verde: Yeah. You see a lot of promises made by plaintiffs’ lawyers, especially in their opening statements, and I try to hold them to that through those promises. You’ll get to the point where you’re looking at whether or not these statements that were made in the opening statement, remind the jurors of what they said and what the evidence did not show, or the absence of the evidence. By the way, that also cuts both ways. As a defense lawyer, you have to make sure that you have ultimate credibility with the jury, and the promises that you do provide in an opening statement, you have to follow through with that.

Julianne Pinter: All right. Well, Vince, tell us more about some of the statistics that we have uncovered that might lend the reasoning behind these juries’ huge verdicts in these cases.

Vince Verde: Well, some of the things that were really interesting there is you look at some of the HR mistakes. We talk about how performance reviews are really important. What you’ll do is you’ll end up terminating some individuals for poor performance, but then if you look at their performance reviews, you’ll see that their performance reviews just were good or satisfactory, yet somebody is saying that their performance was bad. Well, 73% of jurors believe performance reviews are accurate, which is really an important fact because when you now run into the fact that a lot of jurors believe that a good employee doesn’t suddenly turn bad, those are interesting facts because they look at the performance reviews to see whether the person’s a good employee. They compare that performance review with the testimony of their supervisors, who will say, “This was a bad employee,” and it sometimes just doesn’t jive well with the performance review. Then you lose credibility.

James Paul: Vince, if a manager doesn’t like confrontation or doesn’t want to spend time on the performance evaluations and just says all of his or her employees are meeting expectations, could that cause a problem then if later the company needs to try to establish poor performance or misconduct?

Vince Verde: That is the biggest problem I see, the cross-examination of the supervisor that is just painful, and so, I cannot reiterate enough the importance of a good performance review.

Julianne Pinter: Yes. Oftentimes, what happens is the new manager or supervisor comes on board, and they’re scrutinizing things, they’re actually giving honest reviews. Then the plaintiff’s counsel then flips that on their head and basically says, “They were targeting the plaintiff. This new person came on, had it out for them, is an agist or racist or discriminator, or whatever.”

Then, as defense counsel and also at the HR level, you have to really scrutinize that and come up with the theory that explains that, yes, the prior person was rubber-stamping everything, wanted to get along with everybody. Or maybe the territory’s changed, or maybe this new person who came on board is trying to prove themselves, this new supervisor, they’re feeling their jobs on the line. Or maybe there have been some layoffs that have occurred on the upper management level. You really have to dig into what was going on that caused these changes in these performance reviews, so that you don’t have this jury, who’s looking at this long-term employee with great reviews, and all of a sudden, they’re terminated because of performance issues that crop up before they’re terminated.

Vince Verde: The hard part about that is you’re explaining. If you’re explaining a document, it should be self-explanatory that supports your position. But if suddenly you’ve got a bad document and you’re forced to explain it, you’re not really prosecuting the defense of your case, and that’s where the challenges come into play.

Julianne Pinter: Vince, what did the statistics show us with regard to the willingness of jurors to follow the letter of the law versus their own theory of what justice should be rendered in the case?

Vince Verde: I think at some point, once you get to a jury trial, the actual fairness of the law is what the focus is of the jury. You’ve gone through summary judgment. The judge has found that there was an issue of fact and that the legal arguments are out the door now at this point. The jurors make their decisions based on who they believe. Credibility is big. Most of the time, the majority of jurors look at the spirit of the law as opposed to the letter law. I think most of our statistics show about 60, 60+% of jurors going into a trial believe that it’s more important to follow the spirit of the law than the letter of the law.

James Paul: Yeah. When I talk to jurors after trials, they inevitably always bring up, “Yeah. I just didn’t think it was fair,” or “I didn’t think there was good communication,” or “The employee wasn’t given enough chances,” maybe sometimes two or three or four extra chances. Vince is absolutely right. By the time you’re at trial, the law and all of the ins and outs and legal requirements and elements of claims and all the jury instructions matter so much less than who the jury feels was more in the right. Again, remember the feedback we always get is the jurors believe that both sides probably did something wrong or weren’t perfect citizens or perfect employers, but it’s whoever they like the most or whoever they dislike the least, as far as whatever scenario or whatever story or history is presented at trial.

Julianne Pinter: What do the statistics show us with regard to situations where it’s really an employee versus a supervisor as to the facts, and the jury has to choose between them? Who are they more likely to believe?

Vince Verde: Yeah. That’s a really interesting fact, as well. Over 65% of jurors would tend to believe the employee versus the supervisor because if you’re looking at, statistically, the sheer number of folks that are going to be in part of your jury panel, they’re going to be employees. Less likely to be supervisors. Ultimately, you’ll see that part of the tactic of the plaintiff’s bar is trying to strike the employer’s supervisors as part of the jury pool. It’s a battle. It’s a battle on that front.

Julianne Pinter: I find actually that a lot of small business owners, management people, executives actually end up being bounced off the jury for cause because they come up with some reason that they’re indicating their business is going to go under or there’s some meeting they have, et cetera, unless you have a stringent judge. A lot of times, we do end up with an imbalanced jury of peers, and we have to take that into account when we’re evaluating the case and the jury pool that we have before us.

Vince Verde: I guess that also allows us…which requires us to adjust in terms of our witnesses that we bring in aside…not just only relying on say the supervisors that made the decision, but also looking and expanding our witnesses to include the same level individuals whose jobs are probably affected by the performance issues of the person that’s been terminated or that’s been disciplined or probably the plaintiff that’s brought the claim. In that way, you are now not just relying on the supervisor understanding that there is some level of distrust with respect to supervisors and employees, but you’re also bringing employee-level type of witnesses to the trial.

Julianne Pinter: All right. Should we look at some of the cases?

James Paul: Absolutely. Absolutely. Yeah. First, I’ll just throw in because I looked, and we gathered…the U.S. Chamber of Commerce has gathered statistics for the last 10 years and done the cumulative math and statistics. The top 10 jurisdictions for nuclear jury verdicts, or excessive large jury verdicts in this order: California, which is probably no surprise to a lot of listeners, second on the list is Florida, then New York, Texas, Georgia, Illinois, Pennsylvania, the state of Washington, Missouri, and then Ohio. I didn’t do this intentionally, but I practice and try cases and three of the top 10 worst states, Florida, Missouri, and Illinois, but that’s pretty eye-opening. What are some of the cases from last year say, Julianne?

Julianne Pinter: Well, the largest verdict…well, we won’t talk too much about this one because I don’t think it’s as applicable. It’s a $900 million verdict that was a sexual harassment case, Doe v. Alki. It was 2024, and the plaintiff’s attorney asked for a billion dollars. In this case, one of the takeaways we say for HR is basically HR was completely handcuffed or stifled in some manner because it shouldn’t have gotten to this level. It was a very severe case of sexual harassment involving sexual intercourse with employees, things like that. I’m sure they used consent as the defense in this case. The judge did reduce that award to $90 million on a post-trial motion. The reason we know that the HR was not operating or functioning is that on the door of the HR office was a pornographic image and a sign that said, “Her ass” on it.
That indicates that HR was really not functioning at any real level, and the employees themselves actually would refer to one of the rooms in the office as the rape room, and that was very commonly known. Obviously, HR was not…was very silent. In this case, one of the employees actually resigned at some point. There were no releases that were obtained that’s something—anytime an employee resigns—you might want to think about if this is someone who has had any relationship with anyone in the company, maybe getting a release would be a good idea. This employee actually came back and was rehired later. Typically, we would think that that on the defense side would show that there was some consent. Why would you go back to a situation where you were being sexually harassed to such a significant level? But it didn’t matter to the jury; they still found liability.

Vince Verde: Yeah. That was really an incredible verdict there. It is an example of HR disappearing, abdicating their responsibilities. But it’s really difficult because if the person that was the harasser was the top person in the company or the owner of the company or the apex individual, what do we do with that? If you’ve got…you’ve got HR and you’ve got your senior individual being the bad actor, and you telling the supervisor that this person needs to be fired or at least some serious training or discipline, where do you go from there?

Julianne Pinter: I would say my best advice in looking back retrospectively on cases is on those types of cases that are so severe, you should definitely get counsel immediately. First of all, it creates a layer between you and the executive to be able to have that confrontational discussion about the conduct and the legality and the liability, maybe insulating you as the HR person from any consequences.

James Paul: Yeah. We got lots of feedback during our session from participants, attendees where it’s really hard for the HR professional. It’s easy for us to say, “Yes, you just need to stand up and fight this internal battle,” but politically, it’s often difficult or impossible. But make your attorneys the bad cops. We can help get through those political issues and help someone understand how serious this might be if it’s not fixed and remedied, and if a trial isn’t avoided.

Julianne Pinter: I have one more thing to say about that case, just so you know, is that in that case, the judge allowed in, because there was no bifurcation between the damages phase and a punitive damages phase, the fact that there was…I think it was $50 million in prior judgments against the same individual in other lawsuits by women whom he had harassed as well. That was allowed into evidence, and obviously, that riled up the jury in their damages award. That would be something I would want to avoid in the future, as well.

Vince Verde: Yeah. Absolutely. One of the things we talked about, and you mentioned, Julianne, was getting outside counsel to come in. I know that there’s another case that ended up coming into a fairly large verdict, about $21 million in the state of Washington, where there was a doctor who spent 21 years working in a medical clinic. He dedicated his career to advocacy for marginalized communities, and he resigned shortly after complaining about systemic racism. Coincidentally, what happened shortly thereafter was other employees complained about his management styles. Ultimately, he decided I don’t want any part of this retaliatory conduct by the company, and so he brought suit. There was an investigation that was conducted internally by an outside law firm. Incredibly, the investigation report somehow made it to the other side’s hands. It became part of the trial. I always scratch my head when it was conducted by…the investigation was conducted by a law firm, and then that made it to…that became a subject of discovery. My thought process was that there was probably some loose emails where the investigation report went to somebody that wasn’t privileged, and that’s how this became a problem.

Julianne Pinter: Yes. We definitely have to make sure we maintain the privilege on confidential documents. That is critical in these cases. There was also a North Carolina disability discrimination case last year for $22 million. In that case, a bank supervisor had bladder and colon issues from a spinal injury that had occurred in 1990. He was actually in a wheelchair, and so he had to have access to bathrooms very close by. When he moved from one location from LA to North Carolina during the pandemic, it was not an issue because he was able to work from home remotely, as all of his other employees were doing, as well.
But when the company called everyone back to work and mandated in the office, he asked for an accommodation that he could still work from home, and they denied it. The problem was that the bathroom was on the other side of the building, and he needed that access. Interestingly, the company states that they did give him a workstation as an option, but the jury seemed to disregard that when they awarded that $22 million. These failure to accommodate cases, maybe they didn’t document it, maybe it was just somebody’s testimony, and the jury just didn’t believe it. I don’t know the details of that. But do not ignore these failure to accommodate cases, and make sure you document accommodation requests and any accommodations that you have offered to the employee.

Vince Verde: More importantly, also, if you also have a specific group that’s involved in accommodation analysis, make sure that they get involved in those decision-making processes. If you’re looking at an accommodation with respect to a workstation, if there is an accommodation specialist within the company, make sure that they’re involved in making those changes or identifying whether those accommodations or workstations…those are adequate accommodations for the particular employee. I know we don’t have as much time as we’d like, but what’s the best way to avoid these runaway juries that we’ve been studying?

Julianne Pinter: Well, seeking counsel, as we mentioned earlier. Having proper training and documentation. That’s training of the employees, the supervisors, and making sure that the files are documented properly. The reason is that usually when these cases go to trial, and we’re seeing now post-COVID cases five years down the road, the memories are gone of people. They just cannot testify from their memory, and the documentation is key, includes emails–

Vince Verde: Unless you’re the plaintiff, you have perfect memory.

Julianne Pinter: That is true. That is true. In order to refute, rebut, and be able to show that the company did the right thing, and proper investigations are also obviously an important aspect, it’s very important. What do you think, Jim?

James Paul: Yeah. Well, I was going to say something similar. One of the biggest strategic decisions that I want to discuss and make sure everybody’s on the same page. You may be very compliant with regard to the letter of the law, but if you don’t have the documents, you don’t have the witnesses, you don’t have the memory of those witnesses to tell the story or to defend the claims at trial, it’s just not a good case to risk or roll the dice on. There are many times, unfortunately, where if it had happened sooner, if the trial was sooner rather than five or six or more years later, or if we had cooperative witnesses or good documentation, it would’ve been something that could have been pretty successfully defended at least a majority of the time. But so many times, the planets are unaligned, so to speak. I don’t have the evidence, I don’t have the witnesses, I don’t have the cooperation of the people that I need. That’s going to be fatal in a lot of cases.

Julianne Pinter: Yes. Particularly since some of the witnesses in a lot of my cases were either laid off, fired, left, became disgruntled employees, but at the time of the events, they were actually pro-management or doing the right things. It creates a whole other twist. That’s why witness statements are very important. Also, two things that I think are super important when I’m looking at cases now is that fairness sniff test that we talked about earlier. That, at the end of the day, if it doesn’t seem fair, the jury may disregard the law, particularly when it comes to long-term employees.

Vince Verde: Yeah. Exactly. Long-term employees, it’s almost a…you need to really analyze that case before you let them go. That’s going to be a serious challenge, when it gets to that place, because every juror sees themselves in the shoes of that individual. Probably one of the better ways to avoid that is getting an arbitration agreement, and those are the things that plaintiff’s lawyers absolutely hate, and because they hate them, you’ve got to get them.

James Paul: What it provides is really good settlement negotiation leverage because plaintiff’s attorney, the employee’s attorney, is going to realize that their chances of a runaway jury verdict have just been destroyed or gone out the window, and so it makes much more sense to them to be reasonable and to settle a case rather than to continue to fight it. They’re going to spend their time with the cases where they might get to a jury trial and be able to roll the dice and receive a large verdict from a jury. It does create really good leverage for an employer.

Vince Verde: There are some cons to that though, right? The arbitration agreements typically in various jurisdictions, the employer has to pay for the arbitration agreements and arbitrators, can be very expensive. Some plaintiffs try to drag out the arbitration, calling arbitrations 10 days understanding that the arbitrators are about…can be thousands and thousands of dollars per day, hoping that they can use that as leverage to try to resolve the case. Typically, the most arbitrations on single-plaintiff cases are three or four days. It shouldn’t be the 10 days that they’re trying to expand.

James Paul: Well, thanks for listening to us today. We had a great time at Workplace Strategies 2025, and Ogletree Deakins’ Trial Practice Group is alive and well. We are here to answer your questions, and we have perspective from coast to coast.

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