One of the blogs that I most enjoy is attorney John Day’s blog, which is found at www.dayontorts.com. Recently, John discussed that his law firm often accepts client referrals from other law firms. My law firm, DONATI LAW FIRM, LLP, does the same. In fact, some of our best results have come in cases referred by defense counsel, who, for various reasons cannot take the case. As John pointed out in his blog entry, fee splitting among attorneys who do not practice together is allowed in Tennessee so long as you comply with Tenn. Sup. Ct. R. 8, RPC 1.5(e)(1)-(3). So if you are an attorney and you have an employment case, personal injury case, or workers’ compensation case that you would like for me to review, please do not hesitate to give me a call. My office number is 901-278-1004. Billy.
Since the passage of the 1991 Civil Rights Act, Title VII has authorized the recovery of compensatory damages (and punitive damages). 42 U.S.C. 1981a And the Tennessee Human Rights Act (THRA) also allows for the recovery of compensatory damages. Tenn. Code Ann. 4-21-306(a)(7). Unlike Title VII, compensatory damages under the THRA are not capped.
I explain to my clients that the availability of compensatory damages under these laws allows a person to recover for the non-economic harm (e.g., humiliation, embarassment, emotional distress) that they have suffered as a result of the illegal employment action. Of course, a common question that follows is “what are my non-economic damages worth?” This is a very tough question to answer because the answer lies in the collective wisdom of the jury. And it is a tough to predict what a jury will do in a given case. I have had juries award zero in compensatory damages and six figures in compensatory damages. I wish there was a rhyme or reason for these awards, but there’s not.
Interestingly, my clients have had decent results concerning compensatory damages even without expert proof. Of course, there is no requirement that expert proof be offered in order to recover compensatory damages. Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1215 (6th Cir. 1996). In other words, a plaintiff’s own testimony, along with the circumstances of the case, will sustain the plaintiff’s burden in establishing harm. While expert proof can certainly result in increased damages, I do believe that expert testimony on the issue of emotional harm can be problematic. Most experts that would offer testimony in this area (e.g., physicians or psychologists) have a tendency to be very guarded with respect to the diagnosis of emotional harm. Skilled defense attorneys generally have no problem getting agreement on the fact that many other stressors might also exist which relate to the emotional issues experienced by the client. In the end, it always depends on the facts of the case, but generally not having expert proof does not cause me to de-value my client’s non-economic injuries.
One of my most memorable cases involved a white man fired for speaking out against his white supervisor who was using racial slurs at work which were directed at my client’s black friend and co-worker. The evenly mixed-race jury slammed the defendant.
During jury selection I asked the panel to tell me about an instance in which they took an unpopular position/stance on behalf of someone or something. One of the jurors told a great story about how she had never liked cats, but when she found out that local officials in her small town had ordered animal control to kill stray cats she intervened and started a cat adoption and neutering program. She said some opposed her program at first, but eventually most appreciated her work. While I am certain other causes may be viewed as more important, I was touched by the story. Thankfully, this lady ended up on the jury. I knew she would be able to relate to my client and I believe she did.
So while some people may choose to not get involved or get in the middle of wrongs that they observe, whether in the workplace or elsewhere, I really admire people who will stand up for others at great exposure to themselves. I wonder what I would do if ever put to the test. I hope I am teaching my children to stand up for those who may be unable or afraid to speak for themselves.
Fortunately, most job-related, anti-retaliation laws provide protection to persons who protest discrimination on behalf of others, in addition to those persons who have actually been victims of discrimination. A good example is the case of Johnson v. University of Cincinnati, 215 F.3d 561 (6th Cir. 2000) where an affirmative action officer was able to maintain his lawsuit for retaliation against his employer after he was disciplined for opposing discrimination on behalf of women and minorities in the workplace. Also, see Patrick v. Miller, 953 F.2d 1240 (holding 42 U.S.C. 1981 forbids retaliatory actions against white employee for defending rights of racial minorities)
