The parties continue to await the judge’s decision in David Coppedge’s suit against NASA’s Jet Propulsion Laboratory (JPL) and the California Institute of Technology (Cal Tech). As reported in previous entries on this blog, Coppedge was employed as a System’s Administrator at JPL. His suit claims that he was the victim of discrimination and adverse employment actions as the result of his alleged on the job discussions of Intelligent Design. The parties concluded trial prior to Memorial Day weekend, and expect a decision some time in June. While the judge considers his ruling, we can continue to catch up on notable trial tactic decisions made in the case.
First, the parties agreed to waive their right to a jury, and try the case to the judge. This can be an exceptionally difficult decision for a trial lawyer to make, unless the lawyer has reason to believe that the judge will be favorable to his position. For instance, if the judge is known to be a conservative, pro- “tort reform” jurist, then a lawyer defending a product liability case would be thrilled for his opponent to agree to waive a jury, and try the case to the judge. But it probably would not happen, as his opposing counsel would be committing malpractice if he also agreed to do so.
Sometimes a decision to try the case to a judge can be motivated by simple laziness. “Bench” trials are quicker and somewhat more relaxed than jury trials. The parties do not need to go through the risky and complicated process of jury selection. Nor do they have to sit through the torturous jury deliberation process. Put simply, bench trials are easier on the lawyers than jury trials.
Or, a decision to try the case to the judge can be motivated simply by the knowledge, on both sides, that the particular judge is competent, knowledgeable and fair. The parties may mutually decide that their clients will receive justice from the judge, even if it is unfavorable to their client. This, they decide, is a better alternative than the roll of the dice that comes with a jury verdict.
I have no idea why the parties to the Coppedge suit chose to waive their right to jury trial and try the case to the judge. But I can promise that long hours were spent making the decision.
The parties also divulged their respective positions on the damages which should be awarded in the event of a liability finding. Coppedge requests an award of 1.36 million dollars, consisting of $860,000 in lost wages and $500,000 for emotional distress.
JPL, of course, denies any liability whatsoever to Coppedge. But it has suggested to the judge that, if he does find liability, then Coppedge should receive no more than $212,000 in damages. JPL’s decision to suggest this “just in case” damage figure was likely a wise choice. Very often defense lawyers will focus solely on convincing the judge or jury that there is no legal basis of liability. That’s great if it works. But if the judge/jury does find liability, and the defendant has not proposed such a “just in case” damage figure, then any damage amount proposed by the plaintiff will be unchallenged and awarded by the court. This can be devastating for a defendant.
For example, plaintiffs seeking an award of mental anguish/emotional distress frequently request an award calculated on a daily basis. In other words, they may argue “it would be reasonable to award my client a ‘mere’ $10 a day to compensate her for the mental anguish she will suffer for the rest of her life”. This formula results in an award of $73,000 over a 20- year life span.
An effective response from the defense lawyer would be “We don’t believe she is entitled to anything but, if you do find liability, then award her $2000 for mental anguish. This would allow her to visit a trained psychiatrist 15-20 times, which would likely be sufficient to eliminate whatever mental anguish he is suffering from”. If this tactic is not used, and if liability is found, the judge or jury could simply rubber stamp the plaintiff’s suggested award of $73,000 since, after all, the defendant did not challenge it.
By stating their respective damage figures, the Coppedge parties have likely set the playing field for the judge’s decision. Liability may or may not be found but, if it is, you can bet that the damage award will be between 1.36 million and $212,000. We’ll see.
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