Note: The following two articles examine the jury deliberations in the Baker & McKenzie sexual harassment case, in which former secretary Rena Weeks was awarded $7.1 million in punitive damages on Sept. 1 -- $6.9 million to be paid by the firm and $225,000 by former partner Martin Greenstein. While the jurors have been criticized for awarding so much to a former secretary, interviews with 11 of the 12 jurors reveal that they carefully and reasonably considered all the evidence and the jury instructions. The articles were reported and written by Mark V. Boennighausen of The Recorder, an affiliate publication of Court TV.
PART 1
REASONABLE RELATIONSHIPS
Copyright 1994, The Recorder
The day after slapping Baker & McKenzie and former partner Martin Greenstein with $7.1 million in punitive damages, juror Lauran Johnson faced an incredulous co-worker.
"I can't believe you gave that kind of money. What is wrong with you?" the hospital administrator was asked about the Sept. 1 sexual harassment verdict.
Johnson rejects the notion that she and her fellow jurors were out of line. "There was a sense of wanting to be reasonable," she explains, "and not be a crazy Californian and going off and socking huge amounts of money."
Juror Jeffrey Van Dyke -- who spent a lot of time during deliberations copying jury instructions and writing differing damage figures on blackboards -- expresses exasperation at criticism of the verdict. "I took the judge's instructions really seriously and pretty literally," says the structural engineer.
The jurors have come under attack for awarding a secretary so much money. In a Sept. 2 press release, Baker & McKenzie chairman John McGuigan criticized the award for "not coming close to bearing any reasonable relationship to the impact of the situation on the plaintiff."
But interviews with 11 of the 12 jurors dispel the notion that the six men and six women ran amok by awarding plaintiff Rena Weeks a punitive damage award 142 times bigger than her $50,000
compensatory award.
Rather than an indictment of the jury process, the multimillion-dollar verdict in Weeks v. Baker & McKenzie should instead serve as a primer on what happens to an arrogant defendant that goes to the grave saying it did nothing wrong. Baker & McKenzie was its own worst enemy: Partners who took the
stand alienated the jurors, insulting their intelligence by arguing that they did nothing wrong despite overwhelming evidence to the contrary.
In the end, the jurors felt like they had been lied to. In fact, while they disagreed on most of the issues -- including whether Weeks was sexually harassed -- they unanimously agreed that Baker & McKenzie screwed up. Ultimately, they all voted to award punitive damages against the firm, with even the Chicago -based giant's strongest advocate in the jury room supporting a $1 million hit.
This was also a jury that didn't just blindly buy the story told by the plaintiff's lawyers. After carefully examining the evidence, they awarded Weeks $550,000 less than attorney Philip Kay asked for in the compensatory phase, but nearly doubled the amount he suggested for a punitive award.
In a brief interview, firm chairman McGuigan strongly disagreed with the perception that he and his partners lied on the stand. The Australian-born partner pointed out that if the firm's lawyers were going to lie, they would have come up with a much better story.
But he acknowledged that the integrity of his partners didn't come through. "Clearly, with hindsight, we could have done a better job of conveying the essential characteristics of the firm."
As Baker & McKenzie looks to overturn or at least reduce the $6.9 million assessed against it, the firm undoubtedly hopes San Francisco Superior Court Judge John Munter reaches a different
conclusion about the case than the jury did. Deadlines for filing post-trial motions will be set when Munter enters a judgment. He is on vacation and set to return Sept. 26.
But whatever Munter decides, the jury deliberations show how a diverse group of people, carefully following more than 60 pages of jury instructions, reached what they believe is a reasonable
result in what may be the country's largest sexual harassment verdict.
VENTING
When they walked into the jury room for the first time a little after 2 p.m. on Wednesday, Aug. 24, the Baker & McKenzie jurors were ready to let off some steam. After 4 1/2 weeks of trial and
10 hours of closing arguments, they needed to "vent," recalls Lauran Johnson, who supervises roughly 70 employees at UC-San Francisco Hospital.
"When we got in there, everything blew up," says Emilinda Diaz, a 27-year-old policy processor at the California State Automobile Association. "Because we couldn't talk about the case for so long, when we went in there, everybody had a lot of different reactions."
Barbara Giel, who was elected forewoman in a race that included Johnson and Jeffrey Van Dyke, called on each juror to discuss his or her gut feelings. Giel recalls three rounds of venting: "We started off with three minutes [apiece], went to five, and if you were on a roll you could keep going."
The room the jurors were locked in on the City Hall's fourth floor was not a comfortable space. Dirty and cramped with extra chairs and a spare desk, it was at times so poorly ventilated that jurors would prop open an adjoining bathroom door to get some air from an outside window.
After about two hours of this open discussion, the jurors decided to go home and start on the specific jury questions the next day.
When they returned at about 9 a.m. Thursday, they positioned themselves around the large table and began to tackle the first of the six questions: "Did plaintiff Rena Weeks prove by a preponderance of the evidence that she was sexually harassed by defendant Martin R. Greenstein?"
Jeffrey Van Dyke recalls that even before deliberations began, "the majority of the jurors . . . were leaning toward the plaintiff." Still several, including Van Dyke, Lauran Johnson and Roger Warner, had problems with Weeks' story. "She just came across badly," says Warner, a software engineer. "She came
across as not being very bright."
Weeks, who was on the stand for two days, testified that soon after she started as Greenstein's secretary in the summer of 1991, the intellectual property partner began bothering her with inappropriate behavior. The 40-year-old plaintiff, who now teaches pre-school in Los Gatos, often seemed confused and
emotional. Early in her testimony she broke down when describing an innocuous lunch with two other secretaries.
"She seemed in some aspects hesitant and overly emotional," says William Carpenter, a 70-year-old retired teacher. "Although, then again, that might be a natural response."
Juror Winnie Fields, a food program coordinator for the Economic Opportunity Council of San Francisco Inc., expressed skepticism about Weeks' story since the secretary never told Greenstein to stop. "Why didn't she say no," one juror recalls Fields stating.
Jeffrey Van Dyke says he also was troubled by Weeks' failure to confront Greenstein. But other women jurors helped him change his mind, convincing him that he had to imagine Weeks' position.
"I'm six foot tall. I'm white. I've got blue eyes. I'm heterosexual. I'm a professional. I could go on and on," says Van Dyke. "I fit neatly into the oppressor side of any type of argument you make. It's not my experience to be hurt and have any problem sticking up for myself."
The jury, half male and half female, covered a range of backgrounds. "You had a very good cross section," states Warner, the 31-year-old software engineer. "You had white, black and Hispanic. You had educated. You had barely educated. You had blue collar. You had white collar. You had socialist, democratic
and republican and probably libertarian."
THE SIZZLER SCENARIO
Given some of the doubts about Weeks, the jurors approached the evidence carefully. At one point, they decided to recreate the central event in her case: the encounter in the parking lot of the Palo Alto Sizzler restaurant.
In an incident that her attorney Philip Kay repeatedly called a "sexual assault," Weeks accused Greenstein of touching her breast while reaching over her shoulder from behind and putting M&M candy in the pocket of her blouse. Then, she claimed, Greenstein pulled her arms back and stated: "Let's see which
[breast] is bigger."
One juror wondered whether Greenstein, who at the time tipped the scales at roughly 300 pounds, could fit his hand into the pocket of Weeks' blouse, which the plaintiff's lawyers used as an exhibit.
"Someone said, 'Marty can't get his hand in there,'" says Carpenter. So forewoman Barbara Giel donned the earth-tone plaid blouse and let juror Francis Lewis, a retired merchant marine deckhand, reach from behind and pretend to drop M&Ms in the left pocket. (Johnson says Giel volunteered for the role of Weeks
because she could fit into the blouse.)
"The pocket was really small," says Diaz, "but we finally agreed that [getting a hand in there] was possible."
The jury voted 11-1 that Greenstein had harassed Weeks. Only Giel thought Weeks failed to show that Greenstein's actions were "sufficiently severe" to constitute harassment.
"I've been through a lot myself," says the British Airways manager, who puts her age at "fortyish." She adds, "I place my standard at being strong and telling someone to bug off."
But other jurors say they were swayed by the six women who testified that Greenstein also harassed them -- including a temporary secretary, a receptionist, and a former Chicago associate who left Baker & McKenzie to take a Ninth Circuit U.S. Court of Appeals clerkship. Three jurors also cited the
testimony of a male paralegal who said he saw Greenstein grab Weeks' hips while she was loading a van.
Explains Roger Warner, "There was just totally overwhelming circumstantial evidence against Martin Greenstein."
During the trial, plaintiff's attorney Kay shored up his client's weak testimony by putting these witnesses on the stand first. So by the time Weeks told her story, Kay had already established the pattern.
Kay says Weeks came to him through a referral by another secretary after he won a $480,000 sexual harassment verdict in 1990 against the Oakland firm Eskanos & Adler. He brought co-counsel Alan Exelrod into the case about a year after Weeks sued. Together, they advanced roughly $100,000 in expenses to take the case to trial, according to Kay.
Kay, 41, and Exelrod, 51, made a good team. While the professorial-looking Exelrod scored points with his plodding but logical style, Kay provided the passion. The jurors, who created nicknames for various players in the case, dubbed the frenetic Kay "velociraptor" -- after the cunning but vicious dinosaur in
Jurassic Park.
A QUESTION OF INJURY
The jurors' next question prompted more debate: Was Rena Weeks injured by the harassment? According to Giel and Johnson, this question was the most difficult.
Weeks, who worked as Greenstein's secretary for only 25 days, had stipulated before trial that she didn't incur any economic hardship because of the harassment. Instead, she said she suffered emotional distress for two years after she voluntarily left the firm in October 1991.
Her testimony, however, did not make a strong case of serious emotional distress. Describing no physical symptoms other than sleep loss, Weeks testified: "I was scared. I felt defeated. I was a victim."
Despite such meager testimony, Kay asked the jury to award his client -- who made $35,000 a year at Baker & McKenzie -- compensatory damages of $600,000. During the trial, the firm's lawyer, John Bartko, said derisively that Kay's request "might as well have floated down from the ceiling."
The jurors voted 9-3 that Greenstein's sexual harassment caused "injury, damage or harm" to Weeks -- the minimum needed to get a verdict. Two of the women, Giel and Fields, were joined by Gerald Butler, a 31-year-old Air Force sergeant.
A BAD IMPRESSION
While Weeks may not have convinced every juror that she had suffered, she fared a lot better than Baker & McKenzie.
From the outset, the firm had absolutely no supporters in the jury room. The third question produced the only unanimous vote in the trial's first phase. Every juror said Baker & McKenzie failed "to take all reasonable steps to prevent the sexual harassment of plaintiff from occurring."
Even forewoman Giel, the sole juror to vote that Weeks wasn't harassed, didn't buy the firm's story. "There were dots to be connected that weren't connected," she notes, referring to the firm's haphazard handling of the complaints.
Other jurors are harsher. "There wasn't any doubt in anyone's mind that Baker & McKenzie knew this guy was a problem and didn't do anything about it," states Lauran Johnson. The 37-year-old hospital administrator adds, "I don't think anybody really believed much of the firm's testimony."
The jurors certainly weren't impressed by the firm's expert witness on sexual harassment. On cross-examination, San Diego psychologist Gloria Harris admitted that she had never investigated a sexual harassment claim, had never authored a book on the subject, did not have expertise in personnel
matters, and had never created a sexual harassment policy.
Harris, who was disheveled and often stopped her testimony to blow her nose, came off as nonchalant. She also blundered by blurting out something the jurors didn't know: that Baker & McKenzie was "the world's largest law firm" -- a fact that two jurors say they immediately scribbled down in their notebooks.
Johnson expresses amazement at Harris' lack of credentials and less than compelling testimony, especially given Baker & McKenzie's resources. "What a horrible expert she was," Johnson exclaims, adding, "These people could afford the best that money could buy."
In contrast, she lauds the performance of the plaintiff's expert, Mary Roberts. While Harris often appeared befuddled on the stand, the Corbett & Kane partner gave clear and concise answers to a string of hypotheticals. At the end of each answer, Roberts hammered home the point that an employer has to
thoroughly investigate all complaints, keep records of the investigation, and reach a conclusion about all allegations.
"She was incredibly articulate and credible," states Johnson. "She probably made the case in some ways."
A SHOT IN THE FOOT
While expert Harris was bad, the Baker & McKenzie partners who took the stand probably hurt the firm even more. For the crux of its defense, the firm called more than a dozen partners to testify that it took all reasonable steps to keep Greenstein under control. Even the son of one of the firm's founders --
John McKenzie, a partner in San Francisco -- described how in 1990 he travelled to Palo Alto to "counsel" Greenstein about his behavior after he allegedly stroked a receptionist's arm and asked her to go hot tubbing.
But the partners' testimony painted a picture of a firm that didn't adequately document and keep track of harassment complaints. McKenzie, for example, admitted he wasn't aware at the time of the prior complaints against Greenstein.
Lauran Johnson attacks the selective memories of many of these witnesses, especially Chicago partner Robert Cunningham. In 1988, Cunningham wrote a memorandum detailing sexual harassment allegations against Greenstein when the intellectual property partner worked in Chicago. Cunningham, however, did not reveal this memo to Weeks' lawyers until October 1993 -- after he had been deposed and more than a year after they requested it in discovery.
Cunningham, who was on the management committee for the Chicago office, failed to recall the memo until his second deposition. He explained that he had stumbled on it when cleaning his office. On the stand, the 52-year-old tax partner said he couldn't remember the events described in the memo.
Gerald Butler, who notes that his military personnel file follows him wherever he goes, says he couldn't understand the firm's failure to keep organized files on Greenstein. "If you seem to be a problem child, certain things should stay in your file."
Roger Warner, who sports a ponytail and uses the title "smarty-pants" on his business card, was likewise put off by the Baker & McKenzie partners who testified. "They didn't do anything that made me think they were a sincere group of individuals." Then he adds slowly, with more than a bit of sarcasm, "Perhaps Cunningham -- maybe he was truly bumbling."
DRAWING TOO FINE A LINE
Despite such sentiments, Warner denies the jurors were influenced by any anti-lawyer bias. "It wasn't a bunch of people sitting around sharpening their knives [to get attorneys]," he maintains.
The jurors' disdain for Baker & McKenzie stemmed in part from the firm's trial strategy. The firm tread a fine, legalistic line: on the one hand distancing itself from Greenstein's conduct; on the other hand, claiming that it never knew if he had harassed anyone.
In essence, the firm's partners told the jury that, through no fault of its own, it could never decide whether the claims against Greenstein were true, even though seven women in two offices had lodged a string of complaints over four years. And even though the partners testified that they didn't know if
Greenstein had really done anything wrong, they stressed that they continually warned him to behave.
As far as Weeks was concerned, Baker & McKenzie maintained that it still couldn't decide what happened. That was up to the jury.
It was a strategy that only a lawyer could love -- and understand.
One juror saw right through the defense. William Carpenter says he wasn't impressed by Baker & McKenzie Chicago partner John Coleman's claim that he had told Greenstein in 1988 that if he
provoked any more complaints from women, "We were going to kick his ass from here to China."
Counters Carpenter, "If [Greenstein's conduct] were that bad, you don't kick it to China, you don't kick it to California -- which they did," he says. "You kick him out."
The firm did force Greenstein to resign in October 1993 -- but only after Weeks produced a witness who testified in a deposition that the intellectual property lawyer habitually backdated trademark documents. Greenstein denies this.
One juror was also angered by the conduct of the firm's lawyers, John Bartko and Robert Bunzel of the litigation boutique Bartko, Tarrant & Miller. While their presentations were cool, logical and utterly emotionless, they appeared a bit too relaxed for such a highly charged case. "It was just ridiculous," recalls
Lauran Johnson. "Every time I looked, they were chuckling over there [at counsel table] like they were contemptuous of the whole proceeding."
PAIN AND SUFFERING
After voting unanimously that Baker & McKenzie had failed to take all reasonable steps to prevent Greenstein from harassing Weeks, the panel then turned to putting a price tag on her
injury.
Jeffrey Van Dyke wrote each juror's proposed figure on one of the three chalkboards in the room. They ranged from zero to $1 million. In a twist on conventional expectations, two men -- Carpenter and Francis Lewis -- voted for the seven-figure award, while two women -- Barbara Giel and Winnie Fields -- felt she
suffered no injury.
Van Dyke says he struggled with the concept of emotional distress damages. "It's not easy to translate pain and suffering into dollars," notes the structural engineer. Still, he clearly grasped the distinction between compensatory and punitive awards. During this phase of the deliberations, he resisted giving Weeks more money because the firm mishandled other women's complaints about Greenstein.
"Let's put the focus on her," he explains about his position in the jury room. "Let's get it into the right order of magnitude. Six hundred thousand to me is unreasonable. Why set up Weeks for six generations just because she was mistreated by this guy?"
Roger Warner addressed his fellow jurors with a prepared speech that grappled with the question of whether Weeks deserved damages. Pacing back and forth, the software engineer read from a pink sheet of paper.
Maureen Randolph recalls the theme of the 10-minute discourse: "If life is suffering, why do some people get money and others not." The gist, she says, was "we have to pull back and understand that the law is here to protect the weak."
William Carpenter says the speech was "very helpful." He adds that it gave jurors "a little direction and cohesion."
On this second day of deliberations, the jurors took a break with a 2 1/2-hour multi-course lunch at Stars. (Several jurors blamed the length on slow service.) At the pricey restaurant, where the tab was picked up by the parties in the case, jurors Maureen Randolph and William Carpenter split a roast pig.
Later that afternoon, the group voted 9-3 to award Weeks $50,000 for emotional distress, with Barbara Giel, Winnie Fields and Gerald Butler again in the minority. Roger Warner, the software engineer, describes the decision-making process as "kind of congealing." He adds, "Once it began, it was almost like a stampede toward consensus."
OPPRESSIVE CONDUCT
On the third day, Friday, Aug. 26, the deliberations centered on the last two questions, which would determine whether the trial would go into a punitive damage phase. The jurors simply had to decide whether the two defendants should be liable for punitives, but not how much.
To assess punitives against Greenstein, the jury instructions required that nine of the jurors conclude that Weeks had proved by clear and convincing evidence that Greenstein was guilty of oppression or malice. To put Baker & McKenzie on the hook for punitive damages, they would have to find either that the firm
had "ratified" or condoned his conduct, or that it had advance knowledge of Greenstein's "unfitness" and continued to employ him with conscious disregard for others' rights or safety.
Several jurors agree that they didn't believe Greenstein or the firm acted with malice. Instead, they focused on whether they acted with oppression.
One juror wrote "oppression" on the blackboard, followed by the definition from the jury instructions: "Despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights."
For Jeffrey Van Dyke it was a simple case against Greenstein: "He was acting with conscious disregard for anybody's feelings but his own."
As to the firm, he continues, "The key there was that somebody knows another has civil rights and they basically don't give a damn." The structural engineer points out that despite repeated complaints by different woman, the firm only warned Greenstein to behave. "You get the feeling," he says, "the response was certainly appropriate if it were a first offense -- [but not] seven times in a row."
Plaintiff's counsel Kay had pushed that point in his rebuttal argument. The former San Francisco firefighter compared Greenstein to a fire the firm refused to put out. He urged the jury: "Try and help prevent the burning down of other women."
The vote was 11-1 that both Greenstein and the firm should be liable for punitive damages. Barbara Giel, the British Airways manager, was the holdout.
They returned to the courtroom around 3 p.m. to announce their verdict. The $50,000 compensatory damage award -- less than one-tenth of what Weeks' lawyers had asked for -- combined with the punitive damage vote sent a mixed message. The big question was whether this low award signalled that Greenstein and the firm would escape big punitive damages.
As she left the courthouse, Weeks, flanked by Kay and Exelrod, "high-fived" a friend. But when a mob of photographers descended, she burst into tears and walked away.
(Editorial intern Ariel Sabar contributed to the reporting and writing of this article.)
PART 2
A $6.9 MILLION MISCALCULATION
Copyright 1994, The Recorder
When the jurors returned to San Francisco Superior Court on Monday, Aug. 29, for the punitive damages phase of the trial, Baker & McKenzie might have done better if it just hadn't shown up. Instead, its strategy at this crucial juncture turned a loss into an unmitigated disaster.
The firm took two tacks. After denying for 4 1/2 weeks that it had done anything wrong, it now sought to show that it was a changed firm. It also downplayed its wealth, even though it agreed to stipulate that it paid its partners $189 million in 1993, had a net profit of $65 million and had contributed
capital of $68 million.
Several jurors say they took specific offense at a sexual harassment videotape that the firm used to prove that it now takes harassment more seriously. Produced in 1992 after Weeks sued Baker & McKenzie, the firm showed the hour-long tape to its lawyers in Chicago, San Diego and the Bay Area. Baker & McKenzie partners maintained in the trial that the firm didn't create the video as a defense hedge for the Weeks case.
But jurors didn't buy it. "It's hard to believe someone's a convert when they just spent five weeks lying to you about it," notes juror Jeffrey Van Dyke.
"If somebody does something wrong and they correct it, they really correct it," explains the 35-year-old structural engineer. "They're not going to come into the [trial's] first phase and deny everything. They will admit to what they have done."
Other jurors expressed exasperation that the expert in the videotape, Kay Khrone, contradicted Gloria Harris, the expert the firm used in the trial's first phase who validated the firm's actions.
If anything, the tape reinforced how Baker & McKenzie bungled Weeks' complaint. Khrone described how new hires are often targeted by harassers and how an employer should not discount a complainant's allegations because of poor work performance. Greenstein, and to a lesser extent the firm, had portrayed Weeks as an incompetent secretary in the trial's first phase.
"They had the nerve to show the video of Kay Khrone that was a smack in everyone's face," says Air Force sergeant Gerald Butler, who was one of three jurors to vote against awarding Weeks any damages in the trial's first phase. "Here they are in 1992 with this knowledge [about how to deal with sexual
harassment] and they come up on the stand in 1994 like they didn't know anything about it."
"I think the video . . . was probably the best attack the plaintiff had," says juror William Carpenter, a 70-year-old retired school teacher. "It was rather ironic [that the defense showed the video], since it showed precisely what Baker & McKenzie did not do."
Another misfire was firm chairman John McGuigan's attempt to minimize Greenstein's contribution to Baker & McKenzie. McGuigan testified that even though the intellectual property partner pulled in more than $9 million over seven years, the firm only made $10,000 from his work, after subtracting his partner draw and other expenses.
"I thought John McGuigan was absolutely patronizing and insulting with the fancy footwork with the numbers," states Lauran Johnson, a 37-year-old hospital administrator.
Carpenter provided a more brusque description of the firm's attempt at creative accounting. "That was bullshit," he said shortly after the verdict.
But Johnson, who maintained a serious visage in the jury box throughout the trial, was even more incensed by McGuigan's purported concern about Baker & McKenzie's employees. The chairman's testimony about "our employees being our most valuable assets," she says earnestly, "almost made me want to vomit."
'WE WERE DUPED'
When the punitive damage phase ended on Wednesday, Aug. 31, and the jurors filed into a cramped room for deliberations, several expressed outrage at Baker & McKenzie's tactics.
"We were duped," said one.
As they did while deliberating in the first phase, they again started off with a "venting session." This time though their effort in blowing off steam was much shorter and less emotional than the exercise they went through after the trial's first phase.
As a first step, the jurors had to simply decide if any punitive damages should be assessed against the defendants, without putting a dollar figure on it. This time defendant Greenstein actually picked up a supporter, while the firm lost its sole defender.
The jury voted 10-2 that Greenstein should pay Weeks punitive damages, with forewoman Barbara Giel and Winnie Fields holding out. (In the earlier phase, only Giel voted not to impose punitive damages on the lawyer.)
Greenstein even won some sympathy from jurors who voted against him on this count. In the trial's second phase he admitted he had a problem with "interpersonal relationships" and was seeing
a psychiatrist.
"I was leaning toward mercy," says Roger Warner, a 31 -year-old software engineer. "I thought he should [be assessed] $1 in punitive damage initially." Gerald Butler, the Air Force staff sergeant, also voiced compassion: "I do feel for him in a sense, because I feel for his children." (Greenstein, who is divorced,
has four children.)
One juror, however, resisted personalizing Greenstein's plight. During deliberations William Carpenter instituted a policy of referring to the defendant as "Mr. Greenstein" or by his initials, "MRG." The retired teacher recalls, "I said, 'Let's not get caught into the trap of referring to the defendant as Marty'" -- a moniker he felt his lawyers used to soften up their client.
The firm, however, did not have anyone's sympathy. A unanimous jury voted to impose punitive damages, with even Giel -- the usual dissenter -- jumping on the bandwagon.
A MESSAGE FOR GREENSTEIN
During the second day of deliberations, the jury wrangled over just how much money the defendants needed to pay to get the message.
In his closing argument, plaintiff's attorney Philip Kay suggested "as a floor" $3.5 million against the firm and $200,000 against Greenstein. The firm countered that $151,000 would be enough. (Greenstein's lawyer, Thomas Gosselin, didn't suggest a figure.)
Judge John Munter instructed the jurors to consider three factors in arriving at an amount: 1) it had to reflect the reprehensibility of the defendants' conduct; 2) it had to be high enough, in light of the defendants' wealth, to deter the defendants from repeating their behavior; and 3) it had to bear a reasonable relationship to the compensatory damages.
Jurors struggled with making sense of those conflicting instructions. "It was hard, it was really hard," recalls Lauran Johnson.
Even near the end of this long, stressful experience, the jurors were still getting along well. But that wasn't surprising, given the bonding they had gone through during the trial.
At recesses in the oft-interrupted trial, jurors would split up into two groups and work together on newspaper crossword puzzles. Forewoman Barbara Giel brought in a cake for Gerald Butler when he was promoted to staff sergeant. Others shared homemade biscotti cookies and cranberry cake. Maureen Randolph took group pictures before the first day of deliberations and even snapped some photos during jury room discussions.
William Carpenter recalls using an afternoon recess to head to a billiards hall with two other jurors and an alternate. The 70-year-old also remembers the outcome: "The two old ones beat the young ones."
When it came time to come up with a concrete punitive award against Greenstein, the jurors rejected the argument by his lawyer that Greenstein had suffered enough. Gosselin had stressed how his client was forced to take a pay cut after Baker & McKenzie booted him. "We didn't feel sorry for the fact that he moved from $550,000 a year to $250,000 a year," says Johnson, adding, "That didn't make us bleed very hard."
She adds that the jury felt that Greenstein -- who stipulated that his net worth was $1.93 million -- wasn't going to "get it" unless they hit him where it counts.
By a vote of 10-2 they decided that $225,000, or about a year's salary, would do the trick.
GETTING TO $6.9 MILLION
Getting a number for Baker & McKenzie was harder.
William Carpenter recalls the jurors' initial reactions. "Barbara [Giel] was going around [the table] and asked Frank [Lewis] what he thought the range of [punitive] damages should be. And Frank says $25 million, just like that."
Jeffery Van Dyke wrote several ratios on the blackboard, comparing the $50,000 compensatory award with income figures for Weeks, Greenstein and Baker & McKenzie. He doesn't remember the details, but Lauran Johnson says the ratios supported a $25 million verdict. But Marion "Ray" Williams, a 76-year-old
retired sewage plant engineer for the city, countered that $10 million was more in line, a number that Maureen Randolph tentatively agreed to.
Giel continued to poll the jurors. "Winnie Fields . . . passed," recalls Carpenter. "Gerald [Butler] said something and put his head on the table. Linda [Diaz] passed." Next in line, Mary LaPointe, an unemployed graphic artist, said she needed more time.
"Then I made my speech," says Carpenter. "I said, 'Since these people have gotten religion they should do a little tithing.'" Carpenter, who says he doesn't consider himself a religious person, suggested $6.9 million, which represented a little more than 10 percent of the firm's capital base. "Lauran [Johnson],
Roger [Warner], and Jeff [Van Dyke] all said that sounded like a good number," he continues.
Eventually, a total of 10 jurors agreed to the $6.9 million assessment.
But even the two "no" votes weren't willing to let the firm off scot-free. Forewoman Giel says she would have agreed to a $1 million award; Fields says she would have accepted $1.5 million.
By this time the jurors' exhaustion produced an air of calm. Says Randolph: "We were so drained by the time we got to the [punitive] phase of the trial that coming to the verdict was one
of the most unemotional things we did."
Around 2:30 p.m. the jury told the judge that they had reached a verdict. As the news spread, Judge Munter's courtroom quickly filled with the press and other onlookers. Her voice trembling, court clerk Vera Mu announced that punitive damages would be assessed against both defendants.
When Mu read the words, "$6.9 million," an audible gasp rose from the gallery. After the jurors were dismissed, Weeks hugged several jurors and shook hands with others as she thanked them for the verdict.
A LACK OF REMORSE
For all their calculations on blackboards, perhaps the most significant factor for the jurors was the firm's complete failure to show any remorse.
"That was their best shot," says Roger Warner, the software engineer. "They must have been extremely overconfident going in. Maybe they didn't care. Maybe they didn't think it was going to cost them very much in the end."
Jeffrey Van Dyke puts it in even stronger terms when asked if it would have made a difference if the firm had admitted to making a mistake. "Oh, absolutely, are you kidding," says the structural engineer, his voice rising. "My feeling is if they would have gone in and said, 'You know, there was a lot of miscommunication. It's a big firm. There are a lot of partners. There is not necessarily one guy who gets all the information and who makes all the decisions.' [The verdict] would have been a really little number."
Van Dyke says jurors tried to understand how the firm could fail to discover sooner that Greenstein was a bad apple. "Maybe they didn't [know], but see, they should have. If you are large and powerful, you need to have your shit together. If you are the boss of 1,000 people, in a way, it's sort of more important that
you recognize civil rights than if you are the boss of two people. More people are going to get hurt if you blow it."
But, instead, the firm refused to admit any mistakes. "If they were more interested in truth than in money," Van Dyke says, "they would have put more emphasis on the truth than their desire to win."
Defending the huge gap between the compensatory and punitive awards, Van Dyke says critics of the verdict ignore Baker & McKenzie's wealth and egregious conduct. "It's not so outrageous talking about six or seven million dollars in punishment for repeated civil rights violations," he maintains.
Asked about the requirement that the award bear a reasonable relation to the $50,000 compensatory damages, he pleads his case like an appellate lawyer. "I say wait, stop. Look at the law. The law doesn't say these numbers have to be equal or that one can't be more than five times the other or a million times the other."
Roger Warner recalls that some jurors were concerned during deliberations that the verdict might be overturned. But they decided to let the system take its course. "We couldn't try to second guess," Warner concludes, "and it wasn't worth considering."
Van Dyke offers a message for those who didn't attend the trial. "When people are so shocked by the size of the number, I say they should be more shocked at how much responsibility Baker & McKenzie has in terms of their power in the world. Power equals responsibility."
He continues: "The bigger you are, the larger portion of the free market you enjoy, and the bigger exposure you have to punishment if you don't follow the rules. Which is how it should be."
(Editorial intern Ariel Sabar contributed to the reporting and writing of this article.)
