The business attorneys in the FedEx Ground case in Los Angeles, California, suffered no economic loss as they not only retained their jobs, their income increased year after year along with their torment. Presented with the challenge of overcoming juror bias and FedEx’s central theme that there could be no compensable harassment in the absence of termination and the presence of rising compensation, I reframed the debate not as an action for damages, but as a civil-rights enforcement action. The jury was empowered, through a brief history lesson that demonstrated the inequities which have plagued our society, to stand for the principles that our country heralds to be its foundation, equality, fairness and tolerance. They were shown that despite the proclamation that we stand for freedom, equality and opportunity, we are actually a country which was founded upon, and which has cultivated, inequality. They were reminded of how during the Second World War, in California, our government rounded up all people who were of Japanese descent and interred them in camps. They were educated to the fact that civil rights in private employment did not even exist until the 1970s with harassment only becoming unlawful in 1986. The business attorneys Los Angeles were faced with the stark cold truth that attorneys were people founded on equality.
An employment attorney told the jury that the employees had marched and fought for these rights to be on the books but just as “faith without works is dead, laws without enforcement were simply broken promises.” I encouraged them, at this time when we as a nation are making war in an Arab country, to stand for equality and freedom here in America, the very ideals that we were ostensibly fighting for overseas. I pleaded with them to stand for the principles of equality even when it may be unpopular and reminded them that civil rights are designed to protect the minority’. The jury was encouraged to see themselves as the purest form of democracy: people, who, with courage and conviction, could make a difference through I their verdict and stand for a just and fair 1 society where the rights of the minority’ were protected. They were asked to I decide “what kind of America do you want to be,” and they were encouraged to; breathe life into the often hollow rhetoric of freedom.
The jury was asked by the business attorneys in Los Angeles to enforce the important civil rights through a monetary verdict of $2.5 million per plaintiff, for the humiliation and dehumanization which had occurred and been endured by my clients. They were asked to provide a meaningful verdict to help my clients know7 that they mattered, that they were valued, and to help them heal. The jury, empowered as the protectors of these important civil rights, awarded $5.5 million each, to my clients.
The classic eggshell plaintiff
When confronted with the challenge J of demonstrating how a seemingly minor incident can lead to catastrophic consequences, Crowdsource attorneys have found the following technique to be helpful in reaching the jury. During closing arguments I remind the jury that society is comprised of many different types of people. I look directly at a large man in the jury and state, “Some people are rugged like football players or boxers. They can take a beating that would crush most of us and get right back in the game.” I then look at an older or frail looking man or woman and state, “Some people are frail, more fragile, or more susceptible to injury and do not rebound so quickly/’ I say that even the defendants’ expert agrees that there are people who are, by their nature, more susceptible to harm than others and that even a sneeze can cause those people significant injury.
I state, “Last night as I was thinking about this case, I was walking around my home, and I reached for a piece of fruit. I went to pick up an orange and dropped it from about table height. It hit the ground, I picked it up, and put back in the bowl, got myself an apple and had a snack.” By this time I have already placed an orange on the plaintiff’s table where the jury can see it for themselves. I pick it up and state, “It got me to thinking. . . Some people are like oranges, They are strong, thick-skinned, and resilient. When they fall, get impacted or bounced around, nothing much happens to them.” I then bounce the orange on the bar of the jury box and watch as it bounces back
in my hand like a tennis ball. I then state, “The law recognizes that not all people are like oranges. Some are more fragile.”
I then extract an egg from my suit pocket. I say, “Some people are like eggs. Indeed, the law has a term for a person who may be more susceptible to injury; they call them an ‘eggshell plaintiff.’” I show them the CACI instruction on point and go on to say, “These people do not have the luxury’ of resilience. They do not bounce back as easily for whatever rea-son. It is not their fault; God, or circum-stance, made them that way.” I then take the egg and drop it from the same height as the orange, right next to it, on the bar of the jury box and watch as the jury looks to see if it is going to splatter all over them! (I use a hard-boiled egg.) With an audible crunching noise it has no rebound and lands, in contrast to the resilient orange, conspicuously still. I go on to state, “When these people have trauma, even trauma that would not affect most people, they get damaged. They’ crack like this egg. No, they are not destroyed. If you looked at them from a distance, they appear intact, like this egg. But when you see them up close, and you examine them, as we have done in this case, you see that they are forever changed, harmed in a real and significant way.