For the most part, damages in employment lawsuits are awarded by juries. Juries are comprised of people. People have opinions and these opinions influence their decisions when it comes to damage awards. Jury instructions read by a Judge provide parameters parameters and the amount to be awarded may be suggested through evidence of lost wages, emotional distress and other factors, and argument of counsel, but the reality is that these are only suggestions. The award is ultimately up to the jury and because of this, there are several things we tell our clients to remember:
Underdogs are a favorite for American audiences but underdogs must be likeable. This means you want a clean record, no lying on government papers like tax returns, no getting caught in the act of doing something you claimed you couldn’t do, etc. The employer’s attorneys will look for ways to discredit you and make you unlikeable. Don’t help their case.
Ever watch a news program where someone is being interviewed and he says he cannot comment on the case? Think of this as the golden rule. Do not talk about your case. This applies to posting on social media, texts, and emails, and covers “jokes” on these platforms as well. If you discuss any details of the case, comment about the employer’s attorneys, post about getting rich, or any other commentary about the case, all of that can, and most likely will, be discovered by opposing counsel and used against you if at all possible. If you don’t think that will hurt your case, reread “Be Likeable.”
Don’t Play the Martyr
A pending court case is not a reason to stop looking for a job or place your life on hold. People like hard workers. If you look like you’ve been sitting around waiting to cash out, a jury won’t respond to that with the same interest as someone who’s pursuing a fulfilling life while the case is being decided proceeding through a slow litigation process.
You don’t want to look like you’re waiting for your ship to come in or your lottery numbers to win it big. Go on with your life. There is no guarantee of an award in your case but you will look like a more deserving candidate if you are looking for employment and doing everything you can to recover from an unlawful termination. Perception is very important.
Your obligation to look for work is not only a matter of perception. Under the law, you are required to look for work to “mitigate” your damages. Meeting your legal obligation is very important. Since the law requires you to continue to look for work, make sure you keep good documentation on your attempts. Also, make sure your attempts (and documentation) are serious. While you may have to look for work in another industry if jobs are hard to find, your attempts shouldn’t be comical. If they are, the jury may feel like you’re looking for jobs at places you know you won’t be hired. A senior welder looking for work in a women’s clothing store doesn’t seem like a serious inquiry for employment, unless he’s considering a change in careers.
Some people start spending as soon as their case is assigned a date for trial. There are no guaranteed awards so you should never spend more than you have. This applies even after you’ve been awarded damages and have a piece of paper in hand that reads “Final Judgment”. Until you have collected the Judgement and have money in hand, you should not consider that money your money. Appeals and employer bankruptcy can delay, or put off the receipt of money, indefinitely.
Exercise restraint. This is not meant to be a windfall but a monetary award to offset the workplace discrimination, harassment, unpaid wages, etc. that you were subject to. Plus if you buy a brand new car and a jury member sees you parking that morning, you can be assured she will question your need. Even though awards aren’t based on need, biases occur in situations like that.
If you are seeking damages a jury is more likely to award the requested amount if it is based in reality so records are important. How did losing your job affect your ability to pay your mortgage? Did you rack up credit card debt without an income? What was the interest on your credit cards? You want your damages to be based on what this wrongful termination has cost you not on a number you arbitrarily selected. Proof of damages is important to your credibility.
If you think you have an employment claim against your employer, or former employer, contact Wenzel Fenton Cabassa, P.A.. We can advise you of your rights and the initial consultation is always free. Call us today.