With this post, I’m inaugurating MyShingle’s new “Shingular Sensations” series. Every week or two, I hope to interview a solo or a small firm lawyer who in one way or another represents the best that this genre has to offer. But let me be clear – Singular Sensations is not a “self-promotional” series — through my interviews, I intend to glean solid advice from my subjects that will benefit all lawyers. I’ll explain the concept a little more in subsequent posts, but for now, here’s our first Shingular Sensation, Andy Simpson who heads a two lawyer firm in Christiansted, St. Croix, in the U.S. Virgin Islands.
Late last week, Andy Simpson made national headlines winning a $500,000 jury verdict against the U.S. Marshals Service for discriminating against his client Deputy U.S. Marshal Linda Valerino, known locally for hosting a TV show on fugitives in the Virgin Islands. During a 4 day trial, Simpson showed that Valerino’s male colleagues did not want to be supervised by a woman, and over a two year period, filed a series of false misconduct claims against Valerino to block her promotion. Under applicable federal law, the jury’s $500,000 award for emotion stress will be capped at $300,000 but Valerino will also receive $92,000 in back pay.
In this e-mail interview, Simpson shares the backstory on his headline-making verdict and his experience as a solo going up against one of the biggest law firms in the country – the United States Department of Justice. Whether you’re an employment lawyer, an attorney who deals with law enforcement, a solo who goes up against the big guys (or a large firm lawyer who underestimates the small fry), you’ll want to read the entire interview, below the jump.
Can you tell us a little about your background?
My practice is primarily insurance defense. I graduated from Tulane Law School in May 1988 and have been in small firm practice ever since. I moved to St. Croix, U.S. Virgin Islands in 1991 to work with a four lawyer firm and became partner in that firm, which had grown to 10 lawyers. After four years as a partner, I went out on my own in January 2001.
How did first get involved in this matter, and at what stage did you come on board?
I was asked by a solo practitioner to take over primary handling of the case about two months before the discovery deadline. The volume of documents produced by the USA as well as the volume of documents he needed to produce (thousands of pages of documents from FOIA requests related to the Equal Employment Office investigations and internal affairs investigations) was overwhelming. He knew that I had a paperless office that could track and catalogue the documents, so he asked me to come in.
What was your initial impression of your client, Ms. Valerino and her case?
This is a small community, and the legal community is even smaller, so I already knew her enough to say “Hi” to her when I saw her in court; and I had seen her on V.I. Most Wanted, a weekly television news segment she initiated that had caused the capture of a lot of fugitives. So I already had a favorable impression of her. When she began recounting what she had been through I was a little bit skeptical; but only because it was hard to believe that in the 21st Century, the U.S. Department of Justice — of all employers — could allow the type of stuff she described to happen. For example, she had been referred by the Marshals Services’ Employee Assistance Program to psychological counseling to help her deal with the stresses she was facing. This is supposed to be a confidential process but it became common knowledge within the district, which embarrassed her. We offered evidence that her supervisor even tried to interfere with the counseling (he admitted the conduct but denied the intent to interfere). Later on, a cartoon was placed on the same supervisor’s door by another deputy U.S. Marshal. The cartoon showed six men sitting around a beer keg. On the door to the room there is a sign, “Relationships Group Therapy for Men.” One of the men is saying “Let’s see . . . where did we leave off last week? Ah yes . . . all women are nuts. OK, that leaves the rest of the hour to kill this keg.” Linda was humiliated when she saw this cartoon, with its obvious reference to her.
Did your impression change during the course of the case and if so, how?
I was amazed at her strength. Most people would have quit or transferred away to avoid the situation. But she’s just completed 20 years as a Deputy U.S. Marshal and she considers St. Croix her home — she wasn’t going to let them take either her career or her home away from her.
What kind of experience did you have with gender based employment discrimination suits, or employment discrimination generally?
I’ve defended a number of wrongful discharge employment cases that usually include an allegation of discrimination; but in everyone of those cases, the allegation of discrimination is pretty much a gratuitous allegation and the real focus of the case is violation of our local Wrongful Discharge Act. I’ve never had the defense of one of those cases go beyond summary judgment. This was my first discrimination case for a plaintiff. It was also the first plaintiff’s case of any kind that I had ever taken all the way to trial. All prior plaintiff’s cases I had resolved before getting to trial.
Given that you came into this case late in the process, what did you have to do to get up to speed, and what kinds of strategic decisions did you need to make to keep the case on track?
My staff scanned every single piece of paper and catalogued them. Linda was invaluable in identifying the key evidentiary documents — she has an encyclopedic memory for dates. Then I put all of the events into CaseMap to help me track them and develop a chronology.
Strategically, I did two key things. First, I simply decided to produce everything unless it was privileged. It didn’t matter whether the USA requested it or not, I simply produced it. This ensured that I could comfortably say that we had responded to the USA’s requests fully; and it guaranteed that I wouldn’t find myself in a situation at trial where I wanted to use a document but had not produced it.
Second, I decided not to take any depositions. We had sworn statements from every potential witness covering most, if not all, of the key events, because of the Internal Affairs and EEO investigations. So I had a good idea of what the witnesses were going to say. Most of these witnesses were Marshals Service employees who had moved around and were scattered around the country or retired. I thought there were two downsides to taking the depositions: (1) I would educate the Assistant U.S. Attorney as to my strategies for dealing with the witness; and (2) the depositions would preserve the testimony of these witnesses and allow them to be used at trial without cross examination in front of the jury. The sworn statements gave me very fertile ground for cross and I did not want to use that cross examination in a deposition. So, this forced the USA to either call the witnesses at trial and have them subjected to a withering cross examination; or not call them and leave Linda’s testimony about the same subjects unrefuted. The USA decided to not call many of these witnesses. I think that was a smart decision, because the cross examination would have been extraordinarily damaging; but it left Linda, who is very credible, unchallenged on key facts.
Based on the news reports, your client’s colleagues filed false reports against her in an effort to block her promotion – conduct that most of us would agree is outrageous. But how were you able to prove that the reports were discriminatorily motivated? Were there any
Shortly after the employees learned that the supervisor’s position was going to come open, Linda overheard two Deputy U.S. Marshals conspiring against her. The first said “I’m not working for a female supervisor. I can stoop pretty low.” The second responded, “I can go even lower.” Within weeks, the second deputy had filed the first (of seven) internal affairs complaints against Linda. Linda testified about this conversation. The USA chose not to call either of these deputies as witnesses, even though they were on the USA’s final witness list.
Did your client report this conduct to upper level management at the U.S. Marshal’s Service? What was their reaction?
Initially she did not, because she had no witnesses and it would be her word against two others. Two months later, however, another deputy U.S. Marshal who was temporarily assigned to the district was told by the first of the two conspirators, that he would “do anything to keep Linda from getting the job.” To his credit, this deputy U.S. Marshal warned Linda about what he had heard (and confirmed it in sworn statements during the various investigations). Now that Linda had corroboration, she went to the U.S. Marshal for the district. He discouraged her from filing a complaint, telling her, “They always believe the person who filed first.” (At this point, the first internal affairs complaint was pending.) Linda filed an internal affairs complaint against both conspirators, alleging that they were consipiring to keep her from the promotion because of her gender and that they were filing false allegations against her in furtherance of that conspiracy. She was never informed of any action taken on her complaint and the Marshals Service offered no evidence that it ever took any action.
Did you believe the case would in fact go to trial, or did you believe that it might settle at some point?
It should have settled. Our demand was considerably less than the $392,000 judgment (which does not include the award of attorneys fees, which we are entitled to under the Title VII); and the case had the potential for an additional $200,000 in economic damages. When we defeated the USA’s motion for summary judgment and the government still did not want to negotiate based upon a reasonable assessment of a likely jury verdict, I knew we were going to trial.
As I understand from the Press Release, the jury deliberated for under 2 hours which means that they likely formed some very strong impressions during the course of the trial. How many witnesses did you put on and how long did you prepare them for trial? And what techniques did you use at trial to make your points so effectively?
I believe in presenting a very clean case at trial. I knew that this case depended upon whether or not the jury believed Linda, so her testimony was either going to win it or lose it. I had one other fact witness to testify live, a court employee who had two conversations with Linda’s supervisor (the one who got the job that Linda should have received). This employee testified that in one conversation, the supervisor stated, “Princess Linda cannot be trusted to guard the bathroom” and in another, that he wanted to get Linda “off the books.” My other two witnesses were the psychologist who counseled Linda on behalf of the Marshals Service and an economist. The court employee and the psychologist provided valuable verification of Linda’s claims, but the real key was Linda’s credibility.
The other key to the case was the way I used PowerPoint in my opening and closing. I’ve learned much about the use of PowerPoint from attending the ABA’s annual TechShow for many years; but because most cases settle, this was my first opportunity to really put what I had learned to use in a trial. My opening personalized Linda and explained how she had wanted to be in law enforcement from the age of eight. (As an aside, she was inspired by the TV show, “Police Woman.” I’ve learned from some Internet research that this show actually served as a major impetous for women to enter law enforcement — Linda was not alone.) We had a great photo of Linda at the age of 13, holding a collage, in the shape of a gun, that was made of newspaper clippings about gun violence. In about 15 minutes, I explained how the dream of an eight-year-old had blossomed into an exemplary career ( e.g., in 1997, she was personally asked by the acting director of the Marshal’s Service to assist with courtroom security at the death penalty phase of the Terry Nichols (Oklahoma City federal building bombing) trial), with no internal affairs investigations in 14 years; and how the dream she had achieved had turned into a nightmare when she began competing to become the supervisor in her office, with at least seven internal affairs investigations filed in two year span. (All were closed without any finding of improper conduct.)
I thought the closing using PowerPoint was particulary effective. We had three different counts to prove, each with different elements. I broke each count out separately, tracked the language of the jury instructions, highlighted each element of a particular count, then recounted the evidence that supported that element. Each time I was done with an element, a checkbox appeared next to the element and a big red check mark zoomed in on the screen and appeared on the box, indicating that we believed we had met our burden on that element. (For your readers information, I got that idea from The Lawyer’s Guide to Creating Persuasive Computer Presentations by Ann E. Brenden and John D. Goodhue.) By the time the jury received the instructions from the judge, they had already seen how the evidence was tied to those instructions. I attribute the quick verdict to the fact that it was then very easy to go through the 30 pages of instructions and agree that we had proven each element.
As I worked through the elements, I commented on the evidence, highlighting the inconsistencies in the USA’s witnesses, reminding the jury of some of the improbable things they heard. When I got to damages, I used some of the same slides from my opening (especially that picture of 13-year-old Linda) to remind them how Linda’s dream had turned into a nightmare. It was very powerful; some of the people watching the closing were crying. I have to admit, I also choked up a little while trying to tell the story, especially when I explained how the Linda Valerino of today, with the benefit of hindsight, would tell the 13-year-old Linda Valerino to sit silently rather than to file EEO complaints and face what she faced.
What was your client’s reaction to learning that the $500,000 verdict would be capped at $300,000 under federal employment law?
She knew going in that the non-economic damages were capped. But for Linda, this was never about the money; going in, we were hoping the verdict would exceed the cap because that would truly validate her claim. While the jury was deliberating, however, Linda told me it no longer mattered to her what they did. She felt that my closing had finally told her story and given her her day in court.
In addition to the verdict award, your client will receive $92,000 in backpay and attorneys fees. How was the backpay amount calculated? What about front pay?
The backpay award was for time when she was out on leave as recommended by the pyschologist retained by the Marshals Service. We argued she should get back and front pay for the differential between her pay as a Deputy U.S. Marshal and the supervisor’s position. However, the judge ruled that we had not proven that she would have recieved the promotion if the internal affairs complaint had not been filed.
Obviously, your opponents made a mistake in taking this case to trial. Do you think that because you are a solo that they may have underestimated your ability in this case? What miscalculations do you believe they made in deciding to try this case?
I think they underestimated the case as well as the capabilities of a small law firm to present such a case. The fact that I didn’t take any depositions may have contributed to their analysis. I don’t think they realized how much could be proven through Linda’s own testimony; and I suspect that they thought that not taking depositions was a sign of lack of preparation.
I think there is also an attitude within the Marshals Service that refuses to look at these cases from a human standpoint — it’s all about winning and protecting an image. Linda’s case is not unique. Take a look at the facts of DeCaire v. Gonzales, 474 F.Supp.2d 241 (D.Mass. 2007) in which the court found that an act by a US Marshal to transfer a female deputy U.S. marshal, “was gender discrimination pure and simple.” Nevertheless, the plaintiff in that case lost. If I were the head of the Marshals Service, I wouldn’t take great pride in such a victory.
Given that you’ve both prosecuted, and defended employment discrimination claims, what advice do you have for employment lawyers on both sides of the aisle in handling these types of cases?
The first thing is to understand that these cases are very difficult for plaintiffs to win. (The DeCaire case really demonstrates that.) The burden of proving someone acted with a discriminatory motive is extraoridinarily difficult in an age where people no longer wear their biases on their sleeves or underneath white robes. Second, in a case against the government, getting copies of the investigation files is critical. In a case against a private entity, you probably won’t have any investigation files, so you have a lot more work to do.
Many of us are familiar of the concept of the “thin blue line” in police enforcement, where officers will sometimes cover up bad acts of colleagues in the name of loyalty. Did you encounter similar tendencies in bringing suit against a law enforcement agency like the U.S. Marshal’s service? And were there any other special considerations that came into play in suing a law enforcement agency?
Ironically for a gender case, the “thin blue line” is a reference to the brotherhood of law enforcement. We definitely ran into the brotherhood — it was even apparent at trial. One of the internal affairs complaints made against Linda alleged that she was stalking another deputy U.S. Marshal using her government-owned vehicle. At the time of the alleged incident, Linda was meeing with the then U.S. Marshal for the district, so she had an iron-clad alibi. Within seconds of being informed of the allegation, Linda volunteered this alibi to her supervisor (and copied the US Marshal in an email describing the alibi) and figured the matter was going to go nowhere. The US Marshal never contradicted Linda. But at trial, he refused to confirm her alibi; instead saying he didn’t think it could be true because he is usually on vacation at that time of the year. He simply was not going to back up Linda or acknowledge that the other Deputy U.S. Marshal (who was never punished for making a false allegation) had acted improperly. Fortunately, the jury saw through this and I had a field day with it in closing argument. Linda had testified how alone she had felt through all of this ordeal. I pointed out how important it was for a law enforcement officer not to feel alone and to feel that your colleagues “have your back” when you encounter a dangerous situation. I then pointed out that the former U.S. Marshal didn’t even “have her back” in court when he refused to support her alibi.
As far as suing a federal law enforcement agency, there are plenty of procedural traps. Different types of causes of action require that you name different defendants (e.g., the Attorney General instead of the USA) even when the same department of the government is the putative defendant for each cause of action. There are tort claim act considerations, and many other things that have to be looked at.
What advice do you have for other solos who find themselves opposing a large entity, like a biglaw firm or, as in your case, the United States Government?
Most important, know that you can take on such cases, but you have to be prepared. The proper use of technology is critcal to helping to level the playing field.