Critical Strategies in Maximizing Damages Awarded At a Jury Trial or at Mediation

In short, a high back pay award is a result of a client with a high paid position, actively seeking employment and demonstrating to a jury or mediator that the wrongful termination detrimentally affected his or her career. The longer the unemployment or the employment at a lower salary continues, the greater the award.

Compensatory Damages

The second most common category of damages is for pain and suffering, compensatory damages, which are broken down into two categories. First, pecuniary damages involve damages for medical bills to doctors, nurses, psychologists and other health care providers. The costs of prescription medication can be substantial and clients need to keep track of them. Also included in this category are consequential damages such as transportation to the physician and over the counter medication.

Non-pecuniary damages are for pain and suffering for which there is no doctor bill or hard cost to show, caused by the wrongful termination. Physical pain and suffering which can be demonstrated by evidence of physical damages such as unusual weight gain or loss, hives, blood pressure changes and other symptoms of depression and these are the types of injuries that impress jurors and mediators alike. Moreover, jurors need to understand why certain circumstances will render some kind of permanent pain and injury to the client. Perhaps the wrongful termination impacted upon the client's ability to work in a particular field or business permanently.

My best advice for someone who has suffered a wrongful termination is to see his or her family physician. Studies have shown that losing a job can be one of the most stressful situations people go through. It's perfectly natural to have suffered depressive symptoms through the episode and beyond. People who don't get the medical attention and therapy they need, not only don't do their health any favors, but they can detrimentally harm their case as well.

Punitive Damages

Non-governmental entities can be sued for punitive damages, which are damages to punish the employer and to set an example to other employers for wrongfully terminating an employee. People hear about these awards in the news all the time, usually for millions of dollars. What makes the employer's actions subject to a large punitive damage award?

There are several critical factors for this kind of award, which is not usual. The employer has to have acted maliciously. Jurors look for outrageous behavior; reprehensible behavior; and a badly injured Plaintiff. They also look to whether the employer gave untruthful trial testimony. Any evidence presented of actions committed by an employer that would anger a juror would increase the likelihood of a large punitive damage award. Also, many courts will only allow a punitive damage award that in some way relates to the compensatory damages award. For example, if a jury finds $750,000.00 in compensatory damages for a Plaintiff, it is more likely that the Court would uphold a punitive damage award of at least that amount or a small multiple of that award. If the jury awarded $25,000 in compensatory damages, there are few courts in America that would uphold a million dollar punitive damage award in that case.

The Bottom Line

Large trial verdicts and six figure settlements are a product of a showing of strong liability against the employer, coupled with a badly injured Plaintiff, who had a high paying job. The client will have to show that he or she made strong efforts to find another job, couldn't and that the wrongful termination was a major factor in the inability to find a comparable job. In addition, the client needs to demonstrate that he or she treated with a medical provider and that his or her career was on some level, permanently damaged by the wrongful termination. The attorney's job is to gather as much evidence during the litigation that would not only win the case, but would encourage jurors to award a large punitive damage award.