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The jury instructions in the Rena Weeks v. Baker & McKenzie and Martin Greenstein sexual harassment case. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE CITY AND COUNTY OF SAN FRANCISCO DEPARTMENT NO. 3 RENA WEEKS, Plaintiff v. BAKER & McKENZIE, and MARTIN R. GREENSTEIN, Defendants. Case No. 943043 JURY INSTRUCTIONS It is now my duty to instruct you in the law that applies to this case. It is your duty to follow the law. As jurors it is your duty to determine the effect and value of the evidence and to decide all questions of fact. You must not be influenced by sympathy, prejudice or passion. I have not intended by anything I have said or done, or by any questions that I have asked, to suggest how you should decide any questions of fact, or that I believe or disbelieve any witness. If anything I have done or said has seemed so to indicate, you must disregard it and form your own opinion. The purpose of the court's instructions is to instruct you as to the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Even though I will instruct you on various subjects including damages you must not treat the instructions as indicating the court's opinion on how you should decide any issue in this case. The law forbids you to determine any issue in this case by chance such as the flip of a coin, the drawing of lots or by any other chance determination. For example, if you determine that a party is entitled to recover, you must not arrive at the amount of damages to be awarded by agreeing in advance to determine an average and to make that your verdict, without further exercise of your independent consideration, judgment and decision. You must decide all questions of fact in this case from the evidence received in this trial and not from any other source. You must not make any independent investigation of the facts or the law or consider or discuss facts as to which there is no evidence. This means, for example, that you must not on your own consult reference works for additional information. Even if any matter is repeated or stated in different ways in these instructions, I do not intend any emphasis on it. You must not single out any individual rule or instruction and ignore the others. Instead, you must consider all the instructions as a whole and must regard each in the light of the others. The order in which the instructions are given has no significance as to their relative importance. Statements of counsel are not evidence; however, if counsel have stipulated to a fact, or one has been admitted by counsel, you must treat that fact as having been conclusively proved. You may not speculate as to the answers to questions to which objections were sustained or as to the reasons for the objections. You may not consider any evidence that was stricken; that must be treated as though you had never known of it. A suggestion in a question is not evidence unless it is adopted by the answer. Standing alone, a question is not evidence. You may consider it only to the extent it is adopted by he answer. The fact that Baker & McKenzie, which is a partnership, is a party must not prejudice you in your deliberations or in your verdict. You may not discriminate between a partnership and natural individuals. Each is a person in the eyes of the law. Each is entitled to the same fair and impartial consideration and to justice by the same legal standards. Evidence means testimony, writings, material objects or other things presented to the senses and offered to prove the existence or non-existence of a fact. Evidence is either direct or circumstantial. Direct evidence proves a fact without an inference and, if true, conclusively establishes that fact. Circumstantial evidence proves a fact from which an inference of the existence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence. The law makes no distinction between direct and circumstantial evidence as to the degree of proof required; each is a reasonable method of proof. Each is respected for such convincing force as it may carry. You are not bound to decide according to the testimony of a number of witnesses, which does not convince you, as against the testimony of a smaller number or other evidence, which is more convincing to you. The testimony of one witness worthy of belief is sufficient to prove any fact. This does not mean that you are free to disregard the testimony of any witness merely from caprice or prejudice, or from a desire to favor either side. It does mean that you must not decide anything by simply counting the number of witnesses who have testified on the opposing sides. The test is not the number of witnesses, but the convincing force of the evidence. If weaker and less satisfactory evidence is offered by a party, when it was within such party's power to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust. In determining what inferences to draw from the evidence you may consider, among other things, a party's failure to explain or to deny such evidence. Whenever evidence was admitted but limited to one or more parties, you must not consider it as to any other party. Whenever evidence was admitted for a limited purpose, you must not consider it for any other purpose. Your attention was called to these matters when the evidence was admitted. Testimony has been read from depositions. A deposition is testimony taken under oath and preserved in writing. You must consider that testimony as if it had been given here in court. You are the sole and exclusive judges of the believability of the witnesses. In determining the believability of a witness you may consider any matter that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness, including but not limited to the following: The demeanor of the witness while testifying and the manner of testifying; The character of that testimony; The extent of the capacity of the to recollect, or to communicate any matter about which the witness testified; The opportunity of the witness to perceive any matter about which the witness has testified; The character of the witness for honesty or veracity or their opposites; The existence or nonexistence of a bias, interest, or other motive; A statement previously made by the witness that is consistent with the testimony of the witness; A statement made by the witness that is inconsistent with any part of the testimony of the witness; The existence or nonexistence of any fact testified by the witness; The attitude of the witness toward the action in which testimony has been given by the witness or toward the giving of testimony; An admission by the witness of untruthfulness. Discrepancies in a witness's testimony or between such witness's testimony and that of other witnesses, if there were any, do not necessarily mean that any such witness should be discredited. Failure of recollection is common. Innocent misrecollection is not uncommon. Two persons witnessing an incident or a transaction often will see or hear it differently. Whether a discrepancy pertains to an important matter or only to something trivial should be considered by you. A witness false in one part of his or her testimony is to be distrusted in others. You may reject the entire testimony of a witness who willfully has testified falsely on a material point, unless, from all the evidence, you believe that the probability of truth favors his or her testimony in other particulars. A statement made by a party before trial which tends to prove or disprove any material fact in this action and which is against such party's interest is an admission. Evidence of an oral admission not made under oath should be viewed with caution. A witness who has special knowledge, skill, experience, training or education in a particular subject has testified to certain opinions. In determining what weight to give each opinion, you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reasons for each opinion. An opinion is only as good as the facts and reasons on which it is based. If you find that any such fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. You are not bound by an opinion. Give each opinion the weight which you find it deserves. In resolving the conflict in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider the qualifications and believability of each witness, the reasons for each opinion and the matter upon which it is based. Expert witnesses were asked to assume that certain facts were true and to give an opinion based upon that assumption. This is a hypothetical question. If any fact assumed in such a question has not been established by the evidence, you should determine the effect of that omission upon the value of an opinion based on that fact. The plaintiff in this case is Rena Weeks. The defendants are Martin R. Greenstein and Baker and McKenzie. Plaintiff makes two claims in this case. The first claim is that defendants harassed her at work. I will now instruct you as to this first claim. It is an unlawful employment practice for an employer or any person, because of sex, to harass an employee. To establish a claim of environmental sexual harassment against defendants, plaintiff must prove, by a preponderance of the evidence, each of the following elements: 1. That plaintiff was subject to unwelcome sexual harassment; 2. That the harassment complained of was based upon sex; 3. That the harassment complained of was sufficiently severe or pervasive so as to alter the conditions of employment and create a hostile or abusive working environment; and 4. That plaintiff suffered injury, damage, or harm which was caused by the sexual harassment. "Preponderance of the evidence" means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it. You should consider all of the evidence bearing upon every issue regardless of who produced it. Sexual harassment is either unwelcome sexual advances or other unwelcome verbal or physical conduct of a sexual nature. In order to constitute harassment, the conduct must be unwelcome in the sense that the employee did not solicit or invite it and the employee regarded the conduct as undesirable or offensive. In this connection, you may consider, among other factors, plaintiff's speech and conduct and Mr. Greenstein's speech and conduct. Plaintiff must prove by a preponderance of the evidence that gender was a substantial factor in the claimed harassment and that if the plaintiff had been a man, she would not have been treated in the same manner. To recover for sexual harassment, plaintiff must prove by a preponderance of the evidence that the unwelcome sexual advances or other unwelcome sexual conduct was either sufficiently severe or sufficiently pervasive to alter the conditions of her employment and to create an objectively hostile or abusive work environment. In other words, plaintiff must prove by a preponderance of the evidence that the environment in issue was such that it reasonably would be perceived as hostile or abusive and further that plaintiff herself subjectively perceived it to be hostile or abusive. As respects the issue whether unwelcome sexual advances or conduct were "sufficiently severe," you are to consider the seriousness and intensity of the advances or conduct. As respects she issue whether unwelcome sexual advances or conduct were "sufficiently pervasive," plaintiff must show a concerted pattern of harassment of a repeated, routine or generalized nature. In other words, on the issue of pervasiveness, it is not enough for plaintiff to prove merely the existence of acts of harassment which were occasional, isolated, sporadic or trivial. In making the determination as to whether the environment was hostile or abusive, you should look to the totality of the circumstances. Factors to consider include: 1. The nature of the sexual advances or conduct, that is, whether they were verbal or physical; 2. The frequency and severity of the sexual advances or conduct; 3. The context in which the sexual advances or conduct occurred; 4. Whether the sexual advances or conduct unreasonably interfered with an employee's work performance. On the subject of damages, I have told you that plaintiff must prove by a preponderance of the evidence that she suffered injury, damage or harm which was caused by sexual harassment. The law defines cause in its own particular way. A cause of injury, damage or harm is something that is a substantial factor in bringing about an injury, damage or harm. All parties agree that plaintiff chose to leave Baker and McKenzie, and there is no claim that she was terminated or constructively terminated from her employment at that firm. The term "constructive termination" means actions and conditions so intolerable or aggravated at the time of the employee's resignation that a reasonable person in the employee's position would have resigned. In short, no damages may be awarded due to the fact that plaintiff terminated her employment with Baker and McKenzie. Plaintiff claims to have suffered injury, damage or harm in one respect. Her claim is that she suffered that kind and degree of emotional distress which is usually associated with sex harassment, and she seeks damages for that claimed emotional distress. Plaintiff does not make any of the following claims in this lawsuit: 1. That she suffered any emotional distress beyond that usually associated with sex harassment; 2. That she suffered any emotional distress after October of 1993; or 3. That she has suffered or will suffer any loss of wages or earnings or other economic injury. You may not award damages for any of the matters not claimed by plaintiff in this lawsuit. I have instructed you that there is no claim in this case that plaintiff lost any wages or earnings at any time. In this regard, you are further instructed that a plaintiff who makes a claim of sexual harassment need not prove loss of tangible job benefits. That is not a necessary element of such a claim. The law provides that an employer is liable for the actual injury, damage or harm which is caused by an employee who also is a supervisor. Martin R. Greenstein was an employee of Baker and McKenzie, and also was a supervisor. Therefore, if you should find that plaintiff suffered actual injury, damage or harm caused by unlawful sexual harassment on the part of Mr. Greenstein, then your verdict must be against both Mr. Greenstein and Baker and McKenzie for the amount of the actual damages caused thereby. If you find that plaintiff is entitled to a verdict in her favor, then you must award plaintiff damages in an amount that will reasonably compensate plaintiff for any emotional distress of the degree and kind claimed by her, provided that you find that such emotional distress was suffered by her and caused by the act or omission upon which you base your findings of liability. The amount of such award shall include reasonable compensation for such pain, discomfort, fear, anxiety and other mental and emotional distress. No definite standard is prescribed by law by which to fix reasonable compensation for pain and suffering. Nor is the opinion of any witness required as to the amount of such reasonable compensation. In making an award for pain and suffering you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in the light of the evidence. It is the duty of a person who has been injured to use reasonable diligence in caring for her injuries and reasonable means to prevent their aggravation and to accomplish healing. When one does not use reasonable diligence to care for her injuries, and they are aggravated as a result of such failure, the liability, if any, of another whose act or omission was a cause of the original injury, must be limited to the amount of damage that would have been suffered if the injured person herself had exercised the diligence required of her. No matter whether you decide in favor of the plaintiff or the defendants, you may not make an award of attorney's fees for any party. I previously told you that plaintiff makes two claims in this case. Now I turn to the second claim. It is a claim against defendant Baker and McKenzie alone, and the claim is that Baker and McKenzie failed to take all reasonable steps to prevent the alleged harassment of plaintiff by Mr. Greenstein from occurring. In order to recover on this claim, plaintiff must prove by a preponderance of the evidence each of the following elements: 1. That plaintiff was subject to sexual harassment as defined by the instructions which I previously gave you with respect to plaintiff's first claim in this case; 2. That Baker and McKenzie failed to take all reasonable steps to prevent the harassment of plaintiff by Martin R. Greenstein; and 3. That plaintiff suffered injury, damage or harm which was caused by Baker and McKenzie's failure to take all reasonable steps to prevent the harassment. It is an unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent harassment from occurring. When an employer has received any complaint, notice, or knowledge of facts such as to place the employer on notice of any sexual harassment by any employee, the employer has a duty to take all reasonable steps necessary to end such sexual harassment and to prevent any further occurrence. If you find that Mr. Greenstein sexually harassed women before plaintiff became employed at Baker and McKenzie and that Baker and McKenzie had knowledge of such acts, you may consider whether the conduct was sufficiently severe or pervasive so as to warrant his termination or other action by Baker and McKenzie to put a stop to such conduct. If you find that the conduct was sufficiently severe or pervasive to warrant such action by Baker and McKenzie, you may consider the evidence in question in connection with plaintiff's second claim in the case, that is, the claim against Baker and McKenzie alone. However, if you find that the conduct was not sufficiently severe or pervasive to warrant such action by Baker and McKenzie, then you may not consider the evidence of prior acts directed against other women in connection with plaintiff's second claim. On the subject of damages, the instructions which I previously gave you with respect to plaintiff's first claim apply as well to plaintiff's second claim, except that plaintiff's second claim is against Baker & McKenzie alone. If you find that plaintiff is entitled to damages, you must also consider the following. Even though plaintiff is claiming damages from two defendants, or from the same defendant on two claims, she may only have one recovery, that is, she may not recover duplicate damages. Therefore, if you find that she is entitled to damages, you may not double the amount because there are two defendants or two claims against the same defendant. The amount of damages claimed, either by the written pleadings or in the argument of counsel, must not be considered by you as evidence of reasonable compensation. With respect to plaintiff's claim against defendant Martin R. Greenstein, if you find that plaintiff suffered actual injury, harm or damage caused by sexual harassment, you must decide in addition whether by clear and convincing evidence you find that there was oppression or malice by Mr. Greenstein in the conduct on which you base your finding of liability on his part. "Oppression" means despicable conduct that subjects person to cruel and unjust hardship in conscious disregard of that person's rights. "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard for the rights or safety of others. A person acts with conscious disregard of the rights or safety of others when he is aware of the probable dangerous consequences of his conduct and wilfully and deliberately fails to avoid those consequences. "Despicable conduct" is conduct which is so vile, base, contemptible, miserable, wretched, or loathsome that it would be looked down upon and despised by ordinary decent people. "Clear and convincing" evidence means evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the facts for which it is offered as proof. Such evidence requires a higher standard of proof than proof by a preponderance of the evidence. You should consider all of the evidence bearing upon every issue regardless of who produced it. With respect to plaintiff's claims against defendant Baker and McKenzie, if you find that plaintiff suffered actual injury, harm or damage caused by sexual harassment, you must decide whether by clear and convincing evidence you find that there was oppression or malice by Baker and McKenzie in the conduct on which you base your finding of liability on the part of the law firm. You may find Baker and McKenzie guilty of such oppression or malice if, but only if, you find by clear and convincing evidence that: Baker and McKenzie had advance knowledge of the unfitness of Mr. Greenstein and with a conscious disregard of the rights or safety of others continued to employ him, or Baker and McKenzie ratified the conduct of Mr. Greenstein which is found to be oppression or malice. The advance knowledge and conscious disregard, ratification, or act of oppression or malice must be on the part of a managing agent of Baker and McKenzie. A "managing agent" is a person who has sufficient discretion in the firm to make decisions that will ultimately determine firm policy. Conscious disregard by a managing agent of Baker and McKenzie means awareness of the probable dangerous consequences of Martin Greenstein's conduct, and a willful and deliberate failure to avoid those consequences. Ratification means that Martin Greenstein s conduct towards the plaintiff was adopted or approved by a managing agent of Baker and McKenzie, with knowledge of the oppressive or malicious character of such conduct. The attitude and conduct of jurors at the beginning of their deliberations are very important. It is rarely helpful for a juror, on entering the jury room, to express an emphatic opinion on the case or to announce a determination to stand for a certain verdict. When one does that at the outset, a sense of pride may be aroused, and one may hesitate to change a position even if shown that it is wrong. Remember that you are not partisans or advocates in this matter. You must be impartial judges of the facts. In the jury room it is your duty to discuss the case in order to reach an agreement if you can. Each of you must decide the case for yourself, but should do so only after considering the views of each juror. You should not hesitate to change an opinion if you are convinced it is wrong. However, you should not be influenced to decide any question in a particular way simply because a majority of the jurors, or any of them, favor such a decision. In this phase of the trial, you will decide issues of liability and actual damages. In other words, in this phase, you are not to award damages which are designed to punish either of the defendants. You shall now retire and select one of your number to act as foreperson. Your foreperson shall preside over your deliberations. All jurors should participate in all deliberations and vote on each issue to the extent required by the instructions on the form of verdict which will be provided to you. Answer the questions according to the directions on the form and all of the instructions of the Court. If nine or more can agree on the answers you shall return a Special Verdict in the form of written answers to questions on the form you will be given. As soon as any nine or more jurors have agreed upon a verdict in the form which I have mentioned, you shall have the answers signed and dated by your foreperson and then return with he signed form to this room. It need not be the same nine or ore jurors who agree upon each answer to the questions. Each of you may be asked in open court how you voted on each question which you answered. If so, each juror must be able to state truthfully that the answer does or does not express his or her vote. If you have any questions of the Court concerning the Special Verdict form, you may communicate with me by putting your questions in writing and delivering them to the bailiff.