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A Recipe for Emotional Distress: Proving Damages in A Hostile Work Environment Case (the basics)

Representing Workers in Harassment and Retaliation Cases
National Employment Lawyers Association, Chicago, Fall 2008

Friedman & Houlding LLP
25 Senate Place
Larchmont, NY 10538

Case Selection

Proof of emotional distress damages begins with case selection. If your client has trouble telling the truth, he will destroy his case and all the time and money you have invested will be wasted. My retainer agreement states that: "You are required to be honest at all times. There should be no difference between what you would answer if I asked you a question when we are alone, and what you would answer when you are testifying on the witness stand. The key to success is being completely honest with your attorney and as a witness. If you lie, exaggerate or deviate in any way from the facts as you know them you will ruin your case."

At the outset of the relationship with the client, look for evidence of medical treatment. Loss of health insurance is a common factor in decisions to forgo psychological counseling, but the inquiry does not end there. If someone did not seek help from someone in some form, what she went through was probably not severe enough to warrant a large damage award. People with serious psychological injuries often––not always––find a way to discuss them with some sort of professional, or at the minimum with a close friend or family member who may play a role similar to a professional.

Ask your client "who went through this with you," and interview one or two of these witnesses. They should be able to describe what the plaintiff was like before the discrimination, what happened during the discrimination, and how she changed after it ended (if it has ended).

Speak to all treating medical professionals the client saw and review all their records for the period beginning when the discrimination started to the present, to determine whether the client mentioned or was treated for stress on the job, or even just stress. People mention job stress or symptoms or job stress at regular checkups and even dental visits, such as complaints about grinding teeth, or jaw pain, which may be diagnosed as Bruxism or aggravation of TMJ.

Hostile work environments produce the most severe emotional injuries. They may also produce physical injuries, which most disparate treatment cases do not, in the case of sexually or racially motivated assaults, and environments intentionally created or maintained to aggravate existing disabilities (e.g., refusing to grant a smoke free environment to someone who has obstructive pulmonary disease).

Consider Involving a Forensic Psychiatrist from the Beginning

Once I have identified a case where there is a prospect of a significant emotional distress damages award, I usually involve a forensic psychiatrist from the beginning. Large pain and suffering awards are forever being sliced and diced by the First Department, with such illuminating explanations as "too large." You need all the ammo you can get.

A forensic psychiatrist is useful for more than just defending your award on appeal. If you consult with your forensic psychiatrist early on, he should be able to identify issues that typically arise when plaintiffs have the type of experience your client had, which will help you in preparing your client. A forensic psychiatrist can suggest strategies for discovery, particularly depositions, identify potential weaknesses and pitfalls early on, and suggest ways of dealing with them. A forensic psychiatrist will review all treatment, education and employment records; he will be qualified to testify about the meaning of these records, which may otherwise not be admissible as to mental injury.

A forensic psychiatrist can provide a diagnosis, and testify as to how long the effects of the injury will persist. A forensic psychiatrist can identify additional types of emotional distress which may not be apparent (e.g., loss of enjoyment of work).

Look for someone who plays a significant role at a respected teaching institution, such as head of a forensic psychiatry program, has a significant publication history, is certified in the subspecialty of forensic psychiatry by the American Board of Psychiatry and Neurology, has an active patient practice, and with whom I can talk easily.

Google the candidate and review decisions on his testimony and reports. If you find articles about cases that were thrown out because the expert acted inappropriately with a witness, as happened recently while I was researching a candidate, assume your adversary will find the article as well. If you are stuck with an expert you cannot use (because he drew wrong conclusions interviewing your client, or because you came to the case late), hire the expert as a litigation consultant, and throw up a work product wall, to make sure your adversary never gets to ask the expert about the client interview and his conclusions.

I favor MDs because they are harder to trip up on qualifications (e.g., "As a psychologist you have never studied alcohol metabolism, so you cannot say whether ... correct,"). You may need a psychiatrist to separate out biological from psychosocial causes of symptoms such as impotence and to review & analyze the medical records accurately.

If you are realistically hoping for a six figure award for emotional distress, which is going to support an even higher punitive damages award as a multiple of the emotional distress award, the expert's cost is well justified.

Preparing the Client for Deposition

Preparation of the client for deposition is extremely critical where emotional distress is a significant part of prospective damages. Defense counsel frequently question the plaintiff broadly about all the bad things that have happened to him, in an attempt to establish that the plaintiff's present emotional distress is the result of things other than defendant's illegal discrimination.

Prepare the plaintiff for this. Every plaintiff has had several bad experiences in his life other than the defendant's illegal conduct, and should be prepared to testify truthfully as to those experiences. No jury is going to find it credible that the only emotional distress in plaintiff's life was the loss of her job. Nonetheless, it is important that plaintiff understand the use defendant plans to make of this testimony.

Another defense favorite in hostile work environment cases is to ask the plaintiff to "tell me every incident of harassment." Often clients experience harassment on a regular basis but can only remember several representative incidents. Do not allow you client to be boxed into conceding these were the only incidents. Prepare them to respond: "I cannot tell you every incident of harassment, because I was harassed several times a week for a year. I can tell you approximately how often I was harassed, they types of things that were said, by whom and where they occurred. There are several incidents I recall specifically, which I can describe..."

Another common trick is when your client is finished describing several types of harassment she experienced, and the frequency, defense counsel will ask for a specific example. Once provided defense counsel will ask "were there any other incidents in which you felt harasser acted improperly," trying to get your client implicitly to contradict her prior testimony that it happened almost every day. Prepare you client for this trick and if necessary, object on the ground that the question mischaracterizes her prior testimony.

Defense counsel have a penchant for separating the emotional distress from the events giving rise to the emotional distress. After the plaintiff has finished explaining the harassment incidents at her deposition, the question I often hear is: "what effect did these events have on you, if any?"

Defense counsel would be very happy if the plaintiff confined herself to a two minute answer that mentioned feeling sad, headaches and difficulty sleeping. If the client goes beyond this limited testimony at trial she can be impeached.

It is important that your client be extremely well prepared to go back over all of the incidents of illegal conduct and testify, as to what happened, how she felt when it happened, the things that she did that exemplified how she felt (showering immediately, wearing loose clothes to work thereafter), when and where she cried, and with whom. It is very difficult to answer this question in the abstract. It is a lot easier for the witness to review the events in her answer to remind herself of what she felt when the discrimination was happening.

Another method of dealing with the challenge your client faces in describing her emotional distress, is provide an affidavit describing how the harassment affected her and the specific symptoms she endured. This can be provided in response to the disclosure required by Rule 26 (a)(1)(A)(iii)("computation of each category of damages"), or in response to an interrogatory on damages. This ensures you client will not be impeached for failing to describe her emotional distress or her symptoms at her deposition and can be an education for opposing counsel.

Focus on symptoms that correlate with your diagnoses, e.g., depression (withdrawal from friends, weight change), PTSD (avoidance of certain stimuli). Do the same in preparing your client's direct case. Review the DSM before interviewing your client and witnesses on emotional distress.

Direct testimony on Emotional Distress

You expert is there to explain things a jury might not get on its own. The way you explain how your client suffered is through her testimony, and most importantly, through the testimony of friends, family and coworkers.

Your client's trial testimony should present a complete before, during and after picture of how the discrimination ruined her life. Have the client testify about what her life was like before the discrimination, how she relaxed with her family, friends and coworkers, how she enjoyed her work, the sacrifices she made to get where she was. Let her paint a complete picture of her life, including the difficulties she overcame, and the pride and dignity she felt as a result.

Have the client testify about going through the discrimination, with whom she shared her pain and fears (some of these people may make effective witnesses), what it was like to make her complaints to an incredulous employer, how she felt when the discrimination continued, whom she cried with, how often, and how this stress affected her family.

Then have the client testify about how the discrimination changed her. Clients should build on their previous testimony about what had meaning for them in their lives, and explain how the discrimination destroyed all of the enjoyment and fulfillment they obtained from their lives. The client should explain how the discrimination invaded family relationships, including the bedroom, if applicable, how the anxiety and depression made it impossible for her to function as a mother, and as friend to her friends. She should explain how she withdrew as a result of the discrimination, and its effects, and stopped functioning, including on the job as a result. Have the client remind the jury about her goals, and passions and sources of self worth and dignity, and how all of these were destroyed.

Men and women can experience a loss of self worth and confidence that invades the bedroom. This type of injury can be an issue for men or women in racially hostile work environment as well as sexual harassment cases. Intimate details are very powerful. Whether racial, sexual or any other type harassment, victims stop functioning as parents, and sometimes regret how they treat their children. Periods like these can destroy relationships with kids, and cause the kids permanent harm.

Depending on venue, a jury may be able to relate to problems developing with substance abuse, where for example a recovering abuser resumed using after a long period of abstinence. If this is an issue in a venue where an admission of drug use is the death knell, your expert may be able to help by explaining it as self treatment.

You need not have a hostile work environment case to prove emotional distress. The same techniques can be used in a disparate treatment case, where the victim was aware of the disparate treatment, and complained. The complaint, perhaps to the CEO through an "open door policy," may be a stepping stone to the client voicing his feelings during testimony.

Do not ask your client to discuss her feelings unrelated to her story. Constantly focus on a narrative that will allow her to express her feeling naturally. All that can be done by having her repeat what she told those whom she was close to, and her therapist.

Friends, Family and Coworkers

Rely on the testimony of plaintiff's friends, relatives and coworkers. Corroborative testimony is important. I try to put on at least four corroborative witnesses on emotional distress. It is particularly powerful to have people from different walks of the client's life give their unique perspectives on the changes the client went through during and after the discrimination.

Use close friends and family members to paint the before, during and after picture. The client valued family time above all else; afterwards we couldn't get her to come to Thanksgiving dinner. She and her husband loved to dance. The weekly calls to check on her best friend. It's all there, and it's real. You only have to ask.

Have the witnesses also focus on symptoms that correlate with your diagnoses. Let the friends and family speak in intimate terms the jury will relate to. Frame the client's discussion of suicide through her son's testimony, when he heard his mother saying goodbye to her grandchild like it was forever.

Co–workers, even those still employed by the defendant, will sometimes corroborate these emotional changes. It is the rare defense attorney who will prepare them for such questions. It is very powerful for the coworker to describe changes that the harasser and management should have been aware of.

The testimony of treating medical professionals can be very effective. A treating psychologist or psychiatrist is a fact witness. She can testify that your client tried to describe how she was treated at the defendant, she sobbed uncontrollably, hyperventilated, and had to be taken to a hospital and medicated because the experience of reliving the events was so traumatic.

A treating psychologist or psychiatrist can also be qualified to offer expert opinion, however, it is unlikely that you want two experts offering diagnoses; leave that to your forensic psychiatrist. If your treating psychologist did report a diagnosis, prepare her to be cross–examined on it. You should discuss her preparation with your forensic psychiatrist.

Your forensic psychiatrist will corroborate all of the client's testimony regarding the sources of joy and satisfaction in her life, and how the discrimination destroyed that. He will be able to explain exactly how discrimination or harassment can and did cause such serious and long lasting injury. Eg: "without treatment the prognosis for such impairments includes further deterioration such as increasing social alienation, loss of friendships, self–medication (via alcohol or drug use) of hyperarousability driven by fear and helplessness, premature aging, and associated mental and physical comorbidity."

Because your expert invariably will include a statement in his report to the effect that treatment is necessary if the client is to improve, make sure you client gets treatment. Put it right in your retainer agreement: "If your employer caused you physical or psychological injury which could be helped by treatment from a qualified medical provider such as a doctor, nurse, psychiatrist, psychologist or social worker, you cannot ignore the potential benefit of treatment. If you do, your employer will claim that it should not be held responsible for injury that could have been helped by such treatment. If you are unable for any reason to obtain treatment please let us know." I have been told by one NELA colleague that Massachusetts courts now allow failure to mitigate as a defense to emotional distress damages.

In a hostile work environment case your damages are going to revolve around emotional distress, so warn your client in the retainer agreement and again whenever you have the chance, that "By bringing this lawsuit you put your emotional state at issue. The defendant is entitled to enquire about anything which may have upset you, including prior illness, surgery, substance abuse treatment, criminal record, bankruptcy, loss of loved ones––the list goes on."

Your opening and closing statements should focus on painting a picture of your client as a complete human being––just as her and her friends and family's trial testimony did. You should review the activities from which she derived pleasure, whether singing in the choir or going out with friends. You should review the struggles and sacrifices she made to achieve what she achieved, not only at work, but through education, and the sacrifices she made to have and support her family. You should talk about the value work held for her which was central to her life, how if allowed her to have dignity––as an achiever and a good parent–– and the pleasure she derived from work. With the evidence you have presented, through your client, her family, friends, treating physician and forensic psychiatrist, the jury should be able to conclude that the defendant has permanently destroyed most of the value your client obtained from her life, and you will have laid an evidentiary foundation that is defensible on appeal.

Practice pointers:

Ask your forensic psychiatrist whether she prefers to have the plaintiff's deposition transcript before she writes her report, whether she requires any other transcripts, and schedule expert report due dates accordingly.

If your client becomes tearful during the deposition, or becomes overwhelmed by emotion and has to leave the deposition, this is important information your forensic psychiatrist will miss unless you make a record of what happened. You can resume the deposition and state that the witness was tearful during the entire ten minute recess.

In preparing your client for her Rule 35 exam you may show her your expert's report, or you may discuss certain key points with her.

Try to limit the Rule 35 exam to as little time as possible with a lunch break in the middle. You do not want your client being exhausted.

Remind her that she is entitled to take a break whenever she feels she needs one. Rule 35 exams can be very stressful. Be available by phone during the session.

Tell the client that if she feels that the psychiatrist does something inappropriate she may take a break and call you, if necessary, or write down any questions that troubled her when she gets home and email them to you.

Minnesota Multiphasic Personality Inventory (MMPI) is the most frequently used personality test in the mental health field. It can be scored by the defendant's expert, or sent out to be scored independently. Find out who scored it.

We have the following in our retainer, all of which was created in response to problems we have encountered in hostile work environment cases:

Taking Documents from Your Employer

We have seen strong cases destroyed because the plaintiff took documents or information from his employer that he was not allowed to see, particularly confidential, sensitive or attorney–client privileged documents. . . .

Preserve All Evidence

You may not delete or modify any computer files that relate in any way to your employment, including emails. That includes any communications you may have had with friends or family about your claims. . . . . Do not make posts on myspace or facebook about your case.

Don't Quit Without Telling Us First

If you need to leave your job you should do so. Before you give any indication to the defendant that you are going to be leaving you must advise us of your intention to do so. We will counsel you so that your leaving cannot be made to look like job abandonment.

Don't File for Bankruptcy without Consulting with us first . . . .

Reducing Your Economic Damages

If you have been terminated from your job you are required to look for work. . . .


Wiretapping or taping a conversation to which you are not a party is a crime in all states. It may sometimes be to your advantage to tape a conversation to which you are a party, for example, if your boss has been verbally sexually harassing you, where there are no witnesses. Please note that if you are caught taping you may be fired. If you think you should be taping a conversation please discuss it with me before you do.

Duty of Complete Honesty

You are required to be honest at all times. There should be no difference between what you would answer if we asked you a question when we are alone, and what you would answer when you are testifying on the witness stand under oath. The key to success is being completely honest with your attorney and as a witness. If you lie, exaggerate or deviate in any way from the facts as you know them you will ruin your case.