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By Chris Opfer
When high-profile sexual harassment defense lawyer Gerald Maatman enters a courtroom, he wants to see the jury box filled with older men.
“Older jurors tend to have a longer attention span,” says Maatman, who represents the Weinstein Co. in various cases stemming from allegations of assault and harassment against founder Harvey Weinstein. “If you’ve seen and successfully navigated some of these issues in the workplace over the years, you may have a more measured idea of how businesses work,” he told Bloomberg Law.
The question in many of Maatman’s cases is whether a company should be legally liable for bad or even predatory behavior by an executive. He prefers to have men making that call because at least some are more likely to “take the defensive” and bring some skepticism to the courtroom.
“As a defense lawyer, I’m interested in people who want to hear all sides of the story and wait until they hear the evidence instead of deciding just on the elevator speech,” Maatman, a partner at Seyfarth Shaw, said.
Since the explosion of the #MeToo movement, however, lawyers on both sides of the aisle are also taking a closer look at potential jurors’ personal experiences. Attorneys want to know whether someone called on to decide legal liability in a harassment case has been subjected to inappropriate touching, propositions, comments, or other offensive behavior--or knows someone who has, such as a family member, friend, or co-worker.
Attorneys are equally curious about what potential jurors make of the wave of allegations that has swept the country since Hollywood mogul Weinstein was outed as an alleged harasser and assaulter last year.
“I wouldn’t want to talk about #MeToo directly too much because jurors may see that as you trying to play the movement for the benefit of the client,” says Douglas Wigdor. His firm represents a group of Uber riders in sexual harassment claims against the company and recently sued Ernst & Young on behalf of a partner at the accounting company who says she was groped by a colleague. “But people come into a courtroom with certain perceptions and experiences and it’s important to understand what those are,” Wigdor said.
Jury consultants, business attorneys, and plaintiffs’ lawyers told Bloomberg Law that understanding jurors’ own experiences and thoughts on the #MeToo movement is a key part of litigating sexual harassment cases. Starting a dialogue, reading people’s body language, and making educated guesses about whom to put in the jury box can make or break a case, they said.
“In some way, shape, or form people are going to have knowledge of the movement,” Nonnie Shivers, an attorney for Ogletree Deakins in Phoenix who defends businesses in harassment cases, told Bloomberg Law. “What we want to test for is personal experience. We need to look for people whose personal experience makes them unable to take an unbiased look at the case.”
Sexual harassment trials come with high stakes. Personal reputations, careers, and hundreds of thousands of dollars, sometimes millions, are often on the line. The rules for picking jurors and for whether they need a unanimous verdict to find liability varies based on the court.
State courts, some of which require only a majority verdict in civil cases, generally give lawyers more opportunity to talk with potential jurors and decide who gets on the panel during the “voir dire,” or jury selection process. Judges in those courts are often more willing to allow attorneys to explore personal issues like a potential juror’s experience with sexual harassment. The lawyers also get to block a certain number of jurors from participating in the case.
Federal judges tend to like to ask most of the questions during jury selection, but lawyers still get a chance to remove certain names from the jury list. Jurors in a federal case must decide unanimously to find a person or business liable for sexual harassment in the workplace.
“That’s why many people run from federal court,” says Bernard Alexander, a California trial lawyer who won a $10 million discrimination case against Office Depot, told Bloomberg Law. “You don’t get to voir dire the jury and you need a unanimous verdict.”
Although Alexander represents plaintiffs in sexual harassment cases, he shares Maatman’s preference—and that of two other defense attorneys who spoke to Bloomberg Law for this story—for people with more experience under their belts in the jury box.
“I don’t like young jurors,” Alexander told Bloomberg Law. “They think they’re invincible. They think that if someone loses a job that person can find another job anywhere. Older jurors understand that things can happen to derail what you had planned for your life. They also understand the value of money and the loss of savings and benefits that can come with losing a job.”
Across the board, each of the lawyers and jury consultants said it’s increasingly important to probe potential jurors’ individual experiences and views.
They do that by directly asking people about their backgrounds and looking for clues about how they might approach what can be salacious and complicated allegations of discrimination and harassment. That includes asking potential jurors how they get their news.
“If someone reads the New Yorker, they’re obviously going to be well-versed in the #MeToo movement,” Wigdor said. “If someone’s go-to reading material is the National Review, they’re likely to have a very different perspective.” The New Yorker, along with the New York Times, broke the Weinstein harassment story.
David Garland, who in 2016 represented former Fox News chief Roger Ailes in a harassment lawsuit by anchor Gretchen Carlson, is looking for thorough readers.
“Facebook and Twitter are not the same as the New York Times or the Washington Post,” Garland said. “Someone who is going to read a Times article is going to pay more attention for a longer time than maybe someone who is scrolling through Facebook.”
Ideally, lawyers and judges would simply ask potential jurors about their own #MeToo experiences. That way they could avoid the hiccups that can come from painting a jury with a broad brush based on factors like age and sex.
“You don’t know if that older male has a wife or daughter who says this has happened to me,” Dallas-based jury consultant Mary Griffitts told Bloomberg Law.
Griffitts likes to use written questionnaires to break the ice and explore jurors’ personal experiences. Asking people to talk about sensitive topics in a group of strangers isn’t an optimum approach in her experience, she said. The best scenario is one in which jurors can then talk about any relevant experiences in a private discussion with the judge and the lawyers, Griffitts said.
“It allows people to tell their stories,” she said. “I don’t want the person who doesn’t think they can talk about it. Those are the scary jurors where you don’t know what you’re going to get once the trial starts.”
Alexander goes into voir dire with a list of 20 questions. He doesn’t expect to get to the end of the list.
“If you can get the jurors to talk with each other, that’s the key,” Alexander said. I’m asking whether jurors “believe discrimination still happens in the workplace, and doing it in a way that gets them to interact among themselves and get a discussion going,” he said.
Potential jurors are often interviewed together in California state courts, he said.
The Weinstein saga sparked a tinder box of harassment allegations against public personalities and put a national spotlight on people in powerful positions—mostly men—behaving badly.
The criminal case against comedian Bill Cosby shows just how far the pendulum has swung in favor of hearing out the accusers. The TV star often called “America’s dad” was convicted in April of sexual assault, stemming from claims he drugged and raped an acquaintance. The verdict came in a retrial for Cosby: The original case against him ended in a mistrial last summer. The second time around, the judge allowed five more women who also said they were drugged and assaulted by Cosby to testify against him.
“What was really interesting to me as an observer is how probably six to nine months of culture change really changed the dynamic of the judge’s ruling in terms of the witnesses that were allowed to testify,” a harassment defense attorney who spoke on the condition of anonymity told Bloomberg Law. “That was just people realizing it wasn’t socially OK to be silent anymore.”
Shivers said the Cosby jury was also willing to look past the fact that many of the witnesses didn’t come forward with accusations against him until decades after the alleged assaults.
“Juries are starting to understand that people may not report, and not reporting doesn’t mean that the claim isn’t credible,” Shivers said.
The ramped-up public attention to sexual harassment cases and the changing dynamic in the courtroom are likely to give plaintiffs’ attorneys new leverage, lawyers on both sides said.
“The blood is in the water,” Shivers said. “I would be shocked over the long term if we don’t see emphasis on settlement.”
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