A Word To The Wise

So now your notorious client has testified and, as if often the case, proved to be his or her own worst enemy. The court in Bell described Leona Helmsley's testimony as “belligerent, confused, agitated, and insensitive.” However, even the boors of the world have rights. The court concluded that her testimony served to inflame the jury and resulted in an untenable punitive damages award. The judge wrote, in reducing the award, “Punitive damages are not a game of Lotto and more particularly to the matter at hand, Mrs. Helmsley is not a 4 Billion Dollar pi'ata for every John, Patrick or Charlie to poke a stick at in the hopes of hitting the jackpot.”

Does this suggest an alternative, albeit dangerous, strategy — let the client be the client, that is, be outrageous in the hope that any resulting jury award would be so flawed as to require judicial rescue? That is not to suggest that that was the strategy in the Bell case or that a punitive damages award of $500,000 is an acceptable result. Rather, counsel is probably well-advised to acknowledge the jury's likely negative views of the client and to address them directly, perhaps reminding the jury that the Leona Helmsleys of the world are not, in fact, high priced pi'atas or private Lottos.

What about plaintiff's counsel? Can counsel expect a big pay day when prevailing against a notorious defendant? Not necessarily so, or at least that was Plaintiff's experience in the Bell case.

Counsel sought $1,553,907.50 in fees, and was awarded instead $568,340.00, still a sizeable sum but not a good return on the lawyer's time expended. Similarly, reimbursement for costs were reduced to almost half those sought. The court reasoned, in reducing the fees and costs, that apart from the “sensationalism and publicity” associated with the case, there was “little by way of novelty or difficulty that distinguishes this case from other gender bias discrimination cases.” The court found that the case was “top-heavy with chieftains,” that the hours and rates were excessive, and the bill of costs were of “exceptional proportions.” Bell v. Helmsley, N.Y.L.J. April 2, 2003, p. 20. So much for defeating the Queen of Mean.

In short, notorious clients no doubt present challenges not present in most other cases. In Bell, it fell to the court to correct for the “Leona Effect,” the jury's reaction to the individual and not the issues. The best interests of your notorious client are, in most instances, served by acknowledging the impact their notoriety will have on the litigation but by not allowing personality to displace the facts. After all, you do not need the ACLU to tell you that even the notorious have rights too. But perhaps you will need to remind the jury of that — often.

(see box below)

Cents and High Sensibilities

The Bell v. Helmsley decision has drawn much attention if for no other reason than its celebrity defendant and its salacious facts. One aspect of the case has been overlooked, however, and that is the court's dramatic reduction of plaintiff's back and front pay awards.

Plaintiff Charles Bell, was offered a 2-year contract to serve as General Manager of the Middletown Hotel with a pay raise of $15,000 after his termination from the Park Lane Hotel. Both hotels were part of the Helmsley empire. Bell turned down the offer, however, because, in the court's words, he felt that “the Middletown did not have the cachet of the Park Lane,” among other reasons. The jury found this to be a bona-fide unconditional offer of employment, and yet still awarded back and front pay. The court reversed this part of the jury's award as being contrary to law. The court reasoned that plaintiff failed to satisfy his duty to mitigate in that “he provided no reasonable excuse for turning down” the Middletown job, which included a pay raise.

This aspect of the Bell case warrants attention from both sides of the aisle. It serves to remind us that the unconditional offer of reinstatement remains a potent weapon in an employer's arsenal of defenses to statutory and many common law claims. It also is a reminder to employees' representatives that the duty to mitigate is alive and well, and may require your client to accept a position that he or she may find distasteful and, dare we say it, even one lacking in “cachet.”

It is often said that bad facts make bad law. A corollary to that principle may be that notorious clients make for problematic verdicts. Such was the case in Bell v. Helmsley, 2003 WL 1453108 (Sup.Ct. N.Y.Cty. 3/4/03), a trial dominated by the ever-entertaining presence of the Queen of Mean, Leona Helmsley. Her testimony, according to the court, lasted only approximately 21 minutes, yet so inflamed the jury that the court felt required to reduce the resulting punitive damages award from $10 million down to $500,000.

Are there any lessons to be learned from the Bell case? The facts, by now, are well-known. Charles Bell worked at a Helmsley hotel, the Park Lane, in Manhattan. He alleged that Mrs. Helmsley discriminated against him because he is gay. This alleged discrimination led to Helmsley regularly berating him, on occasion pulling on his goatee, lightly slapping his face twice, and ultimately terminating him because of his sexual orientation. The hotel responded that Bell was terminated for performance reasons, including his alleged propensity to give free rooms to his friends. The jury found for Bell and awarded him back pay in the amount of $321,000, $800,000 in future lost wages and benefits, $30,000 in pain and suffering, $24,000 in future pain and suffering, and $10 million in punitive damages. The court struck down the back and front pay awards based on Bell's failure to mitigate (see accompanying box) and, as already noted, reduced the punitive damages award (see “Punitive Damages Take a Beating,” page 1).

So what do you do with a notorious client? If the client is yours, standard advice is to decide whether and if you can “hide” him or her, keeping the spotlight elsewhere. In the Bell case, defendants' counsel apparently had no choice but to put her Helmsley on the stand as it was her actions that were at issue. What now? Of course, counsel would want to control the client to the extent possible. That, however, is easier said than done with the Leona Helmsleys and Mike Tysons of the world.

So now your notorious client has testified and, as if often the case, proved to be his or her own worst enemy. The court in Bell described Leona Helmsley's testimony as “belligerent, confused, agitated, and insensitive.” However, even the boors of the world have rights. The court concluded that her testimony served to inflame the jury and resulted in an untenable punitive damages award. The judge wrote, in reducing the award, “Punitive damages are not a game of Lotto and more particularly to the matter at hand, Mrs. Helmsley is not a 4 Billion Dollar pi'ata for every John, Patrick or Charlie to poke a stick at in the hopes of hitting the jackpot.”

Does this suggest an alternative, albeit dangerous, strategy — let the client be the client, that is, be outrageous in the hope that any resulting jury award would be so flawed as to require judicial rescue? That is not to suggest that that was the strategy in the Bell case or that a punitive damages award of $500,000 is an acceptable result. Rather, counsel is probably well-advised to acknowledge the jury's likely negative views of the client and to address them directly, perhaps reminding the jury that the Leona Helmsleys of the world are not, in fact, high priced pi'atas or private Lottos.

What about plaintiff's counsel? Can counsel expect a big pay day when prevailing against a notorious defendant? Not necessarily so, or at least that was Plaintiff's experience in the Bell case.

Counsel sought $1,553,907.50 in fees, and was awarded instead $568,340.00, still a sizeable sum but not a good return on the lawyer's time expended. Similarly, reimbursement for costs were reduced to almost half those sought. The court reasoned, in reducing the fees and costs, that apart from the “sensationalism and publicity” associated with the case, there was “little by way of novelty or difficulty that distinguishes this case from other gender bias discrimination cases.” The court found that the case was “top-heavy with chieftains,” that the hours and rates were excessive, and the bill of costs were of “exceptional proportions.” Bell v. Helmsley, N.Y.L.J. April 2, 2003, p. 20. So much for defeating the Queen of Mean.

In short, notorious clients no doubt present challenges not present in most other cases. In Bell, it fell to the court to correct for the “Leona Effect,” the jury's reaction to the individual and not the issues. The best interests of your notorious client are, in most instances, served by acknowledging the impact their notoriety will have on the litigation but by not allowing personality to displace the facts. After all, you do not need the ACLU to tell you that even the notorious have rights too. But perhaps you will need to remind the jury of that — often.

(see box below)

Cents and High Sensibilities

The Bell v. Helmsley decision has drawn much attention if for no other reason than its celebrity defendant and its salacious facts. One aspect of the case has been overlooked, however, and that is the court's dramatic reduction of plaintiff's back and front pay awards.

Plaintiff Charles Bell, was offered a 2-year contract to serve as General Manager of the Middletown Hotel with a pay raise of $15,000 after his termination from the Park Lane Hotel. Both hotels were part of the Helmsley empire. Bell turned down the offer, however, because, in the court's words, he felt that “the Middletown did not have the cachet of the Park Lane,” among other reasons. The jury found this to be a bona-fide unconditional offer of employment, and yet still awarded back and front pay. The court reversed this part of the jury's award as being contrary to law. The court reasoned that plaintiff failed to satisfy his duty to mitigate in that “he provided no reasonable excuse for turning down” the Middletown job, which included a pay raise.

This aspect of the Bell case warrants attention from both sides of the aisle. It serves to remind us that the unconditional offer of reinstatement remains a potent weapon in an employer's arsenal of defenses to statutory and many common law claims. It also is a reminder to employees' representatives that the duty to mitigate is alive and well, and may require your client to accept a position that he or she may find distasteful and, dare we say it, even one lacking in “cachet.”