Discrimination & Whistleblower Verdict Using AI
- 17 October, 2023
- 70 MB
On this episode of the Justice Team podcast, host Bob Simon engages in a riveting conversation with Michelle Iarusso, Founder and Lead Trial Attorney of Iarusso Legal APC. Michelle delves into a compelling case where she represented a whistleblower against a Santa Barbara nonprofit organization. The discussion delves into the complexities of whistleblower cases, the importance of adverse employment actions, and the resourcefulness required when handling such complex legal matters. Michelle also reveals her innovative use of technology and AI tools to strengthen her trial strategy and emphasizes the significance of meticulous case intake and efficient deposition scheduling. Listen now and discover the level of tenacity required to champion justice! Go to www.justiceteamnetwork.com for more.
Michelle Iarusso, Iarusso Legal APC
Transcript
Bob Simon (00:07):
Welcome to this episode of the Justice Team Podcast, and today we’re talking about discrimination, whistleblower verdicts, and how a very special trialer got a big verdict and used AI and some of the techniques to get it. So we’re going to walk through practically how she got that verdict, some of the hurdles. Welcome to the show, Michelle Larusso.
Michelle Iarusso (00:28):
Thank you, Bob. Thanks for having me.
Bob Simon (00:29):
If you’re just listening and you want to see, of course we have the YouTube page, but she was also on an episode of Bourbon of Proof, where you got her whole story of being a bartender slinging drinks in New York, and then actually going to film school, right?
Michelle Iarusso (00:40):
Yep. Film school, NYU.
Bob Simon (00:42):
Now she’s directing trials and she’s the lead actor, the producer, the executive producer, the writer, all those things. Any questions for Michelle or anybody go to justiceteamnetwork.com and we will get back to you. So Michelle, let’s get into this. You had McCann who’s your plaintiff versus a nonprofit up in Santa Barbara.
Michelle Iarusso (01:01):
Yeah, I have done a lot of nonprofit whistleblower cases. It seems to be a nice niche.
Bob Simon (01:09):
I just want to know, did you talk to the jurors about… You’re in Santa Barbara, which for any of our listeners don’t know, trying cases in Santa Barbara is pretty much you’re going to get a defense verdict.
Michelle Iarusso (01:20):
And I think that’s what the defendants thought. I think that’s why defense counsel pushed so hard and offered so little as we were going through the litigation.
Bob Simon (01:28):
And I think I read somewhere that your plaintiff actually, she had prior counsel before you even got brought in for the trial in 2019, but she had prior counsel that was trying to get her to take a $250,000 offer and then actually got out of the case because she refused to accept.
Michelle Iarusso (01:44):
That’s correct, yes. They did a motion to be relieved. She had something like 10 days or 15 days to get new counsel, and it was right at the eve of trial. I’m surprised that the judge granted it, quite honestly, because it’s so prejudiced for her.
Bob Simon (02:00):
So what did they do during those time where she was unrepresented? Any defense dirty tricks?
Michelle Iarusso (02:06):
Of course, the defense dropped about a thousand pages of emails on her that should have been produced in litigation. So at that time, discovery was closed. The HR director had been deposed. Her manager who was in some of these emails had been deposed, and then her manager’s manager, who also was saying nasty things about her in the emails wasn’t deposed. So when I came in, I tried to reopen the discovery, tried to re-depose that manager, and the judge said, “Nope.”
Bob Simon (02:33):
Wow. So fast-forward, what was the verdict in this case?
Michelle Iarusso (02:37):
The verdict was $2 million for past pain and suffering and $1.25 million for future pain and suffering.
Bob Simon (02:46):
Wow, plus attorney’s fees.
Michelle Iarusso (02:47):
So I’ll bring a motion for attorney’s fees and costs. And I got a donut for the punitives.
Bob Simon (02:53):
Well, yeah, the punitives I could see, it’s a nonprofit.
Michelle Iarusso (02:57):
And that’s what the juror said.
Bob Simon (02:58):
What I want to know, how are they able to award $3.25 million for an individual against a nonprofit that’s doing good things in their community?
Michelle Iarusso (03:07):
Well, that’s the thing. There was a lot of evidence that the nonprofit actually wasn’t doing a lot of good things. So there seems to be, and this is why I get called in for a lot of nonprofits, there’s a mission statement and there’s a bunch of people who are like, “We’re going to do all of these good things,” and you’ve got people at the top who are getting paid hundreds of thousands of dollars. I did a case against the Los Angeles LGBTQ Center. Their top gets paid like $625,000 a year. Something crazy.
Bob Simon (03:34):
I thought… All these nonprofits, I’m on the board of some of these nonprofits, but we don’t get paid anything. We just do it for free.
Michelle Iarusso (03:39):
Well, the board, you’re not getting paid, but the people that work there, the CEO, all of that, they’re getting paid big bucks. And actually the CEO of Community Action Commission was there for the whole trial. And I’ll tell you about her reaction at the end. So basically what happened, so you have these people, they’re doing a lot of good work. They think they’re doing good work, but it’s the implementation on the ground that’s the problem. And so in our case, my client was a whistleblower because there were a lot of very specific things that they had to do for the children that they were not doing.
(04:07):
For example, there were allegations that they were being served spoiled milk and rotten food, and there were issues with people not showing up to work on time or taking breaks that were too long. So all of these little things on the ground were problematic. It was a headstart program. There were kids that had a lot of difficult issues. A lot of them had behavioral intervention plans, so they were dealing with kids who needed a lot of support. And so sometimes what came out in the trial is that they weren’t getting the support because the upper echelons were not doing their jobs and not paying attention and not really caring what happened on the ground.
Bob Simon (04:49):
So let’s go back to when you get this case, you parachute in on a lot of, for trials late, [inaudible 00:04:58] as trial counsel, and you’re kind of just given what you got.
Michelle Iarusso (05:00):
Yep.
Bob Simon (05:03):
You came in, discovery’s closed. You get these new emails.
Michelle Iarusso (05:07):
And I brought the motion. The judge was like, “Absolutely not.” We were set to go to trial in December of 2019. I brought the motion, the old counsel, in order to get my client to take the offer. Well, I don’t know why they did it, but they de-designated her experts.
Bob Simon (05:27):
No.
Michelle Iarusso (05:28):
Yeah, they took away… I didn’t have an econ, so I couldn’t put on any specials.
Bob Simon (05:34):
So [inaudible 00:05:34] educator, our listeners and viewers, when you’re proving damages, when you get these $3.25 million worth of damages, are they all earning as economic? How do you prove those losses?
Michelle Iarusso (05:44):
Well, typically, especially in a case like this where she’s not been able to find a replacement job because she lives in a town of 45,000. Typically, I would put on the wage loss and I would show, she’s a part-timer, she doesn’t have benefits. Back then she had dental, medical, full benefits, and she had a steady salary. So I would have an economist come in and say, “Well, here’s the value of the benefits. Here’s the value of the salary,’ and I’d get a nice big number.
Bob Simon (06:14):
Can’t use it here.
Michelle Iarusso (06:18):
Nope. All I had her testify about was the fact that she didn’t have a steady job. She couldn’t afford dental care. We really had to-
Bob Simon (06:25):
Make it a general damage.
Michelle Iarusso (06:26):
Exactly.
Bob Simon (06:28):
So was it all general damages?
Michelle Iarusso (06:29):
Mm-hmm.
Bob Simon (06:30):
Wow.
Michelle Iarusso (06:30):
Yep, all general.
Bob Simon (06:31):
So do you need to have a testifying psychologist or medical doctor to talk in these cases, or can it just be your plaintiff and people around her?
Michelle Iarusso (06:42):
Well, obviously I didn’t need to because it didn’t happen.
Bob Simon (06:43):
I know, and that is the answer for a lot of our people [inaudible 00:06:47]. I know in the California [inaudible 00:06:48] that their damages is you don’t need anyone other than the plaintiff to prove their emotional damages.
Michelle Iarusso (06:53):
And one thing that I did is I blanketed Lompoc. This was the witnesses, everything, they lived in Lompoc. I blanketed them with subpoenas. I spent thousands of dollars and had hours and hours blanketing them with subpoenas so I could get people to come. I had a lot of witnesses who did not want to participate. They did not want to come. And I had to ask the judge for bench warrants. It was hardcore.
(07:18):
But what I was able to get out of pieces of these hostile witnesses, even though they didn’t want to be there, and even though they weren’t friends with my client, they said, “I saw her crying. I heard them say things. I knew she was upset. I knew she put on a tough face.” So it wasn’t just the client. I was able to take those pieces from the other witnesses, and I think it was helpful to me that they were adverse.
Bob Simon (07:41):
So walking our listeners and viewers through, let’s talk about the whistleblower cases. What are they? How do you have to prove them? And then what building blocks do you need to prove your case?
Michelle Iarusso (07:52):
Sure. So there’s a variety of whistleblower protections. Some are for people that are in healthcare specifically, and then there’s just the general 1102 0.5 whistleblower. So basically what you need, you need to show that your person either did or contemplated or they thought they were going to raise an issue about something that’s illegal. I’ve had whistleblower cases that are about crimes just straight up like, this person is drunk driving on the job.
(08:23):
Or I’ve also had whistleblower cases that are more about, and this is the nonprofit issue, how they’re spending their grant money, whether they’re fudging audits, that kind of stuff. So there’s a lot of those cases, and really those are… It’s black and white sometimes about the whistleblowing. You have the email, you have the, we can’t do this. This isn’t right. Why did you omit this information from the audit? So that’s black and white. The harder part is figuring out the nexus between an adverse employment action, which means a demotion, not getting a raise, something like that. So the whistleblower part itself can be pretty clear, but then you’ve got to go and build up.
Bob Simon (09:08):
If you have a whistleblower, what are their damages? If they just come to you and say, “Hey, I saw this at a healthcare setting. They were fudging the grants. They were under-reporting their losses. They were spending the money directed here. I have email as proof.”
Michelle Iarusso (09:27):
For them being a whistleblower in that situation without an adverse action by the employer, nothing.
Bob Simon (09:33):
So they have to then have been demoted or fired. What are things that have to happen to them?
Michelle Iarusso (09:37):
So demoting, firing, sometimes projects are taken away, which takes away the ability for them to advance in their career. Yeah, there can be a lot of things. Maybe if you have somebody who… I’ve had one case where we had a manager who was overseeing a very large group of workers who were very highly skilled, and it was a high profile position within the company, and then she whistle blows, and then they kind of put her in the back.
(10:08):
Same position, same pay, but she’s not doing the things that are making the company bulletin, and she’s not doing the types of work that are going to get her to the next step. Those kinds of things. And that can be hard because it’s not really clear all the time. You’ve got to put it together with a bunch of circumstantial evidence.
Bob Simon (10:26):
So you have to prove that they were fired or these things happened to them due to the whistleblowing?
Michelle Iarusso (10:34):
Yes, it has to be a substantial motivating reason.
Bob Simon (10:37):
Wow. What does that verdict form look like?
Michelle Iarusso (10:41):
Well, our verdict form was long. We had 16 questions because it was a combination of racial discrimination and the whistleblower. So actually, yes, our substantial motivating reason was for the racial discrimination. So basically, we went through and asked, was she discriminated against? Was she harassed? And then did she disclose violations of state and federal regulations? And then at the end, it was, was she fired because of her race? Was she fired because she was a whistleblower? And then they have to ask, did the defendant prove by clear and convincing evidence that they would have terminated her?
Bob Simon (11:22):
So there’s a rebuttable presumption if they get there that the defendant has to then prove the adverse.
Michelle Iarusso (11:27):
Right. So for the whistleblowing, they have to prove by clear and convincing evidence that they would have taken the adverse employment action anyway.
Bob Simon (11:33):
Wow.
Michelle Iarusso (11:34):
So what we had in my case was they had said… My client had taken a video of it… Well, do you want me to back up and tell the story of the case?
Bob Simon (11:43):
Yeah.
Michelle Iarusso (11:45):
Because it’s hard to explain without. So my client worked at Community Action Commission of Santa Barbara for 16 years. She was a lead teacher at one of the centers, and she was known to be a very tough teacher, which was good for a lot of children who were difficult because she provided them with structure and helped them work through some of their behavioral issues. So no write-ups, no nothing until about 2013. They give her a bad performance review, and they talk about her tone. A lot of it’s like her tone, and she’s like, “I’m just very forthright. I’m very direct. This is my culture.”
(12:25):
All those emails that they dropped on me, the managers are like, “I’m so tired of hearing about her culture. Is she going to complain anymore? Is she going to… What is her culture? What is this?” And so she gets the bad reviews, she keeps making complaints. She’s making complaints all the time to the appropriate licensing agency. She’s calling anonymously because she figures out that the licensing agency is calling her supervisors. They’re pretending that everything’s okay, and so the reports are not going through. So she’s doing all of this. People know that she’s complaining. She gets a negative performance review.
(12:56):
She gets another negative performance review in 2014. She’s super, super stressed about what’s going on at that point. There are people in the workplace that are calling her a black rat, a black gorilla. She’s a very dark skinned black woman, probably about 5’10”. And this is really affecting her morale. And also it’s affecting her because when she needs help in her classroom, they’re not helping her. And again, these are kids… Some of the kids are physically violent. Sometimes you have to take the other kids out as you’re dealing with one child who’s having a crisis. So you need backup, and she’s not getting it. So she goes out on stress leave, and while she’s out on stress leave, there is one particular child that was on the other side.
(13:38):
So there’s two classrooms there. And management decides that they’re going to move the child to her side. And rather than have a meeting with her to go over the child’s behaviors, how to handle her, et cetera, they’re like, “Nope, we’re just going to move this child.” She says, “I’m begging you don’t do this.” She has a letter that she sends to all the management, and they’re like, “We don’t care. We’re moving the child anyway.” What happens? The child has a crisis. None of the people will come and help her. She’s screaming for help from everybody.
(14:05):
Everybody’s like, “Nope, I’m busy. Nope, it’s your turn to deal with this kid. No, I’m not going to do it.” And in desperation, she takes out her camera and films the child, She wants to show that she’s not the one harming the child because a child’s being violent, it could be bruised. And she also wants to show they’re behavioral interventionalists that they work with, she wants to show the behaviors so them and be like, “Hey, how do we deal with this?”
(14:28):
First, the program director, over all of these centers, there’s like 25 centers. This is a $25 million operation. This is a big profit. First, the program director sends a letter to licensing, says, “Oh, we suspect child abuse. We think Ms. McCann abused this child by verbally yelling at her.” Now, the person who made the complaint about Ms. McCann verbally yelling at the child was the woman who was calling Ms. McCann a black gorilla.
Bob Simon (14:54):
What?
Michelle Iarusso (14:55):
She was asked to come help during the crisis, and she said no. And then a bunch of other teachers said no. So the child abuse didn’t go anywhere. Nobody believed that Ms. McCann abused the child. But then they decided, “Oh, it was the video. The video was the worst thing you could have ever done.” The child was taking off her clothes, not during when she was being videotaped, but they’re like, “Oh, the child is in distress. You can’t ever videotape her. That’s the worst thing ever.” As we go-
Bob Simon (15:17):
We live in 2023. It’s like everybody’s videotaping everything.
Michelle Iarusso (15:20):
Right. And part of the work, this is what came out in trial, part of what they do with the children for their behavior is to videotape.
Bob Simon (15:28):
Oh, come on.
Michelle Iarusso (15:28):
Everybody videotapes.
Bob Simon (15:32):
You’re in Santa Barbara. Did you have any black jurors even on your pool?
Michelle Iarusso (15:35):
No.
Bob Simon (15:37):
No.
Michelle Iarusso (15:37):
Not one.
Bob Simon (15:38):
It’s just, Oprah’s the only one. I think she’s the only one.
Michelle Iarusso (15:40):
Oprah and Meghan Markle my birthday-mate.
Bob Simon (15:44):
Ah, look at that.
Michelle Iarusso (15:45):
Me, Megan and Barack Obama. August 4th.
Bob Simon (15:46):
That’s a good day.
Michelle Iarusso (15:46):
Is a good day.
Bob Simon (15:49):
My youngest is August 8th. Just missed it. Actually, Oprah’s actually born on my birthday January 29th.
Michelle Iarusso (15:52):
Really?
Bob Simon (15:53):
Yeah.
Michelle Iarusso (15:53):
Wait, so is that Capricorn or no, is that?
Bob Simon (15:55):
Aquarius.
Michelle Iarusso (15:56):
Aquarius.
Bob Simon (15:56):
Don’t insult me.
Michelle Iarusso (15:56):
Sorry.
Bob Simon (15:57):
Don’t insult me. And Tom Selick and my twin brother, Brad. Anyway… And Heather Graham, I believe.
Michelle Iarusso (16:04):
Really?
Bob Simon (16:04):
Older girl.
Michelle Iarusso (16:05):
What happened to her?
Bob Simon (16:06):
She’s still around, I guess.
Michelle Iarusso (16:07):
Is she?
Bob Simon (16:07):
I don’t know.
Michelle Iarusso (16:08):
[inaudible 00:16:09] is such a good movie.
Bob Simon (16:09):
So did you have a jury consultant?
Michelle Iarusso (16:09):
No.
Bob Simon (16:12):
Wow.
Michelle Iarusso (16:12):
I had nobody. I had just me.
Bob Simon (16:15):
I want to get into this for our listeners, because a lot of people are true solos out there, lone wolves that don’t have a lot of support. And sometimes it’s hard to find support in cases just because people don’t believe that the case is a winner.
Michelle Iarusso (16:28):
I did have some co-counsel back out. My client had a very hard exterior. She was hard to work with. It took me years to gain her trust.
Bob Simon (16:37):
Because I assume 2019, you got pushed into COVID, and then you were in the abyss.
Michelle Iarusso (16:45):
Correct, yes. Wow. 2019, we were set to go, I think April 20th, 2020. So I go in there. We do motions in limine December, 2019. Too close to Christmas. We continue until April. Then the pandemic happens. And then in 2021, we got set for, I believe, 2022. I went in 2022. I was up in Lompoc, again blanketing with subpoenas, getting the witnesses, the defense continues it, and then we finally get done at 2023.
Bob Simon (17:17):
I was just doing a live. I’m going to do a live story videotaping. No, I’m just kidding.
Michelle Iarusso (17:20):
I’m like, what?
Bob Simon (17:23):
But I want to see how this looks if I just videotaped this at the same time. Multitasking. Look at that.
Michelle Iarusso (17:27):
It looks really cool.
Bob Simon (17:28):
Yeah, we’re here live. People will listen to this later. So there you are, lone soldier, trying this case all while your lonesome, how many weeks was this?
Michelle Iarusso (17:35):
It was two weeks. I had to cut the witness list down, because by the time the judge actually let us try the case, she’s like, “Oh, by the way, I’m going on vacation. So if you don’t finish, I’m declaring a mistrial.”
Bob Simon (17:46):
That’s always nice. Who’s your judge?
Michelle Iarusso (17:49):
Donna [inaudible 00:17:50].
Bob Simon (17:49):
Oh, I don’t know that one. So what are some tools that you had to use? You have to be efficient with your time. I assume you’re got a team on the other side, so you don’t… What tools did you use to try to maintain your sanity?
Michelle Iarusso (18:05):
So during the trial, I decided to go completely low tech. I had gone to the Linear Trial Academy with a bunch of my JHQ mates a couple of years ago. And I got one of the IPEVOs, and then I got the card stock and the pens that he uses. So I did everything low tech, except my research. I used CoCounsel, the Casetext.
Bob Simon (18:25):
Yeah. Casetext CoCounsel, which they’re now giving 10% off well to Justice HQ members and anybody with a link, which we’ll drop into the notes here. But we use big believer in that one. So how did you use it during trial? I know we had seen in the chat that Justice HQ members would try to help whenever you would ask. I didn’t know you’re there by yourself, that was really… I feel real bad for you. But what are some things that you used with using AI to help you in the moment?
Michelle Iarusso (18:48):
Sure. So while we were doing jury selection, there were a number of women and our only women of color… No, we had an alternate who’s a woman of color. So there were a number of women, including our potential jurors of color. And they all had talked about the fact that they were aware of implicit bias and these kinds of things, racism in the workplace. They were all three struck. By the time we got to number three-
Bob Simon (19:15):
I would’ve done the wheeler motion after one.
Michelle Iarusso (19:20):
I did. Well, I did it on the third one because I had done some research before, I said number one is not enough. But I was sitting there in the courtroom and I was like, not only are they all women, but they have all expressed an affinity or a sympathy with African-American women in the workplace. And so I put in that CoCounsel. I was like, “Can that be a basis for a Batson challenge?” And so I literally was sitting there as defense was questioning with the potential jurors, and, can I do this?
Bob Simon (19:48):
Wow, so you made the motion?
Michelle Iarusso (19:53):
I made the motion. I cited whatever case that it had come up with, put it on the record. The judge denied the motion, but at least it’s on the record.
Bob Simon (20:01):
And for practical, for our listeners viewers, by doing that alone, it scares the shit out of the other side. They’re not going to do it again.
Michelle Iarusso (20:09):
Right.
Bob Simon (20:09):
Puts them on notice.
Michelle Iarusso (20:10):
Yes. But I did end up with a jury of eight men and four women because they got rid of all the women.
Bob Simon (20:16):
That didn’t seem to work.
Michelle Iarusso (20:23):
No. So my very last day of trial, I had subpoenaed the CEO. She was there the whole time. And I had previously subpoenaed a PMK with some documents to bring for punitives. They objected, but didn’t bring a motion to [inaudible 00:20:37]. So I was like, “Okay, fine. I’ll subpoena the CEO.” I walked over, I said, “Well, here you go.” And we were dark on Friday. So on Friday before the Monday, I was probably going to do this. I emailed them and said, “Hey, do you want to talk about the subpoena? You want to stipulate to any documents?” Blah, blah, whatever, 9:18 in the morning we’re sitting in court, I get served with an opposition or an objection to my subpoena.
(21:02):
And I was like, what is this? And I was like, “Your honor, we should talk about this.” So rather than just talking about it, the judge decides that she’s going to rule on the objection. That at this point, I literally haven’t even read the whole thing because we’re sitting in court. She rules on the objection said, “No, I think your subpoena’s over broad.” And I’m like, “Can we talk about it? I haven’t even had time to oppose it. I don’t have any notice.” And she’s like, “Nope, I’m sustaining it.”
Bob Simon (21:28):
Oh my God.
Michelle Iarusso (21:29):
And I literally grabbed my purse, flew back to my hotel room, got on CoCounsel and said, “Can a judge sustain an objection to a subpoena with no notice and no hearing?” I printed out the memorandum that I got from CoCounsel. I called a friend. I said, “I need this to be a motion in 30 minutes.” And so if I didn’t have… And I did, I had it. I had the motion in 30 minutes. And only because I had the CoCounsel.
Bob Simon (21:58):
You literally used the namesake of the product as the actual use case. That’s just fascinating. I always tell people they’re afraid that AI’s going to take lawyers’ jobs. I say, “No, it’s going to take the jobs of those that don’t know how to leverage it or don’t want to use it or learn.”
Michelle Iarusso (22:13):
Absolutely.
Bob Simon (22:15):
I also saw one of your write-ups on our Justice HQ boards, how you used… You also did something for your PowerPoints.
Michelle Iarusso (22:21):
I did. So because I had gone low tech throughout the trial, I kept notes for what I wanted for closing. But I figured that we would have a weekend over the closing because defense had a huge witness list, and they’d only called three people. On a Wednesday afternoon they’re just like, “We’re done.” And I was like, what? Didn’t even call their second expert that I had spent three hours deposing.
(22:41):
I was like, what the heck? And so I’m up to the judge, I’m like, “Well, I’ll be ready at 9:00 AM tomorrow morning to close.” Because I had days of testimony that I hadn’t gone through yet, and I wanted to do a PowerPoint. So Amanda from JHQ had put out a notice saying, “Oh, Canva has this new AI stuff,” blah, blah, whatever. So I looked at it and I started playing around with their PowerPoint. My God, it was wonderful. So I did a PowerPoint.
Bob Simon (23:14):
Canva?
Michelle Iarusso (23:16):
From Canva. I said, “Give me a presentation that’s a closing argument for a plaintiff in a discrimination case.” And it pops out with a bunch of different choices of how you want it to look, the colors. But it has the scales of justice and the opening, background of the case, emotional distress. Thank you for coming at the end. It has all these pieces, and they gave me 10 slides. So I did that. And then I said, “Give me a presentation on malice, fraud, and oppression.”
Bob Simon (23:44):
Oh my God.
Michelle Iarusso (23:44):
And it popped out, and I got this guy with this evil face for that. And then I said, “Give me slides on a failed HR investigation.” And then I combined all of those different things and then added in my own texts. But usually I’m spending hours picking colors and photos and blah, blah, blah. Nope.
Bob Simon (24:03):
Wow.
Michelle Iarusso (24:04):
So I didn’t sleep very much that night, but I was ready to close at 9:00 AM in the morning.
Bob Simon (24:09):
It’s crazy. And I love Amanda. It’s funny, on the Justice HQ, most people love the use case of the media stuff that she does. And the updates from Canva or Instagram, and these are quick little hits and things. I didn’t know that Canva did that. That’s crazy.
Michelle Iarusso (24:23):
Yeah.
Bob Simon (24:24):
Oh, man. It’s a brave new world. So now tell us what happens when you get this verdict. It’s 16 questions, that’s a lot. That’d usually take people days, the jury.
Michelle Iarusso (24:36):
Yes. Oh, and the fun part, she only gave me 45 minutes for closing. I got cut off in the middle. She didn’t give me a warning or anything. And it was such an emotional closing, I was crying, the jurors were crying. I wasn’t paying attention at the time. So I didn’t get to go through the verdict form with them.
Bob Simon (24:52):
Wow.
Michelle Iarusso (24:53):
At all.
Bob Simon (24:54):
That means you got a good jury. You told a good story all the way through. I do think by the time you get to closing argument, it’s just further affirmations for the jurors that are already on your side. It just you keep arguing with the tools they need to do. So you said you go low tech and you learn at the Linear trial academy, which I think it’s always in Houston end of June-ish?
Michelle Iarusso (25:12):
I believe so, yeah.
Bob Simon (25:15):
Give us some of these tips that you use to do that. I think that’s fascinating.
Michelle Iarusso (25:18):
So one of the key issues in my case was a timeline of the HR investigation. My client had complained of discrimination, and then the video incident happened. She complains in July, the video incident happens in November. They don’t start investigating her discrimination complaint until after the video incident. So one of the very first things I did on my first day when I had the manager is I wrote down with the IPEVO as I was questioning the timeline. And the defense was like, “Objection, your Honor. I don’t think she can do that.” And the judge was like, “I think she can do that.” I’m like, it’s just as if I had a whiteboard. But I kept that piece.
Bob Simon (25:53):
When you’re writing this down, just explain what you’re writing on in real time.
Michelle Iarusso (25:57):
So I’m writing on a heavyweight white paper, and I’ve got my markers, the Paper Mate markers. So I’m writing July, beginning of investigation this. So as the witness is testifying, I’m writing down the dates that they’re testifying to, so that the jury can see visually what this looks like.
Bob Simon (26:17):
That is very powerful.
Michelle Iarusso (26:17):
It was very powerful.
Bob Simon (26:18):
So are you using this… Is this butcher paper? Is this electronic? What is this?
Michelle Iarusso (26:23):
No. So it’s literally this little IPEVO thing that’s about a foot tall that sits on council table. And that’s what I use, I’m writing on the paper. It’s like an [inaudible 00:26:34], and then it shows it. So that’s what I’m doing. And then all of my exhibits, I also use paper.
Bob Simon (26:41):
But you’re writing on your pad that projects onto-
Michelle Iarusso (26:45):
Oh, so the court had a screen.
Bob Simon (26:47):
Wow. And then you’re able to save that, and then you could show it to the jury in closing. It would show to them.
Michelle Iarusso (26:52):
Yeah.
Bob Simon (26:52):
Whoa. Another thing, I do think timelines are absolutely critical. In any case, I do a lot of medical cases and it’s when things happen, when they went to the doctor, when surgeries occurred and also implementing and when defendants were doing things. A lot of lawyers lose sight that they think by just saying it, jurors are going to get it. It’s not like that.
Michelle Iarusso (27:10):
No. Especially if you have a timeline that’s so stark and so important. I think the visual is, you can’t do without it.
Bob Simon (27:20):
And then there’s a lot of people that help you with these timelines. We used to have to do these manually. Again, these AI products, you can drop them in and ask for a timeline. It’ll pick up every date. It’s crazy.
Michelle Iarusso (27:30):
Absolutely. Oh, you reminded me when I asked Canva for the timeline, I said, from July to December. And so part of the timeline, it gave me months, different slides that were months.
Bob Simon (27:43):
I’ve done with the CoCounsel product too, I’ll just drop in thousands of pages of medical records and ask for just the timeline.
Michelle Iarusso (27:50):
Nice.
Bob Simon (27:50):
Oh, it’s crazy.
Michelle Iarusso (27:51):
I’ve not done that with CoCounsel yet.
Bob Simon (27:53):
It’s good. You always fact check. I always say with the ethical part of it, you fact check all of it. It should get you 90% of the way there. But shit, that’s amazing. All right, so then you get through this 16 pager without even explaining to the jury how to fill it out, which we’ll talk about that later apparently worked out for you. The verdict’s read. Is your client there with you?
Michelle Iarusso (28:14):
Oh yeah, we cried and hugged each other.
Bob Simon (28:16):
I was going to say…
Michelle Iarusso (28:17):
But at that point, we knew so many of the jurors were with us because throughout the trial they were so appalled at some of the testimony. We could hear them. When they talked about, “Oh, well, I didn’t start investigating because I didn’t really understand her complaints.” One of the jurors in front was like, “How many times did she have to tell you?” And she was right there.
Bob Simon (28:38):
That’s awesome.
Michelle Iarusso (28:40):
They were a very, very caring jury. And then I was going to tell you about the CEO. So the CEO is new. She was not there when this happened to my client. Afterwards, she came out to my client and she was, not in tears. I think the word would be [inaudible 00:28:55]. She was choking up. I lived in New York for 11 years. And she came up and gave my client a hug and was like, “I’m sorry you went through this.”
Bob Simon (29:06):
Well, I hope they compensate her and do the right thing. They’re going to have a large attorney fee bill too. You spent a lot of time on this, years and years and years. Wow, that’s powerful. So how many causes of action were there? Is it whistleblower on top of discrimination?
Michelle Iarusso (29:27):
It was racial discrimination, racial harassment, whistleblower retaliation, and I think we had wrongful termination of violation of public policy. But basically it just distilled down to whistleblower retaliation, discrimination because of race, wrongful termination. They did not find that she was terminated because of her race. They found that she was harassed, but they really thought that the termination was for the whistleblowing.
Bob Simon (29:52):
But it doesn’t matter for you. All roads lead to Rome, it has to be-
Michelle Iarusso (29:56):
Yes.
Bob Simon (29:57):
So explain that for our viewers and listeners, what they have to overcome in order to win to get the damages on these types of cases.
Michelle Iarusso (30:03):
So the very first question that we had was, was there an adverse employment action? And luckily for me, the jury didn’t just check yes or no. They put how many voted yes. So it was 12:0 on that. Sorry, I’m going to pull this up right now. I don’t remember.
Bob Simon (30:21):
Oh, I love it. A lot of people try to spend too much time trying to prove every… If you win on one, you win. And I try a lot of spine injury cases. People try to prove acute injuries too much and just realize aggravation, preexisting condition leads to the same place. So this is fascinating stuff.
Michelle Iarusso (30:42):
The defense wanted a much more complex verdict.
Bob Simon (30:45):
I’m sure they did.
Michelle Iarusso (30:45):
They wanted a 36-page verdict form, which was ridiculous.
Bob Simon (30:49):
Confusion is the best friend of defense lawyers.
Michelle Iarusso (30:52):
Luckily for me, the judge who I don’t think was always on our side.
Bob Simon (31:00):
That’s good sometimes though, because it makes your verdict more ironclad.
Michelle Iarusso (31:05):
For example, there was some impeachment evidence and it was just clear dead bang impeachment, and she just looked at defense. She’s like, “Well, I have to let her show it.” I’m like, “But why wouldn’t you?” You know what I mean? Why is this even a close call? Why do you feel like you have to let me know you have to… So yeah, the first question was adverse employment action.
(31:26):
So that was 12 to 0. And then next we had, did the defendant believe that she disclosed or would disclose violations of licensing requirements? Again, 12 to 0, yes. Did she have reasonable cause to believe that there were licensing violations again, 12 to 0, yes. And then was her disclosure a substantial motivating factor for the decision to discharge her? 11 to 1, yes.
Bob Simon (31:54):
Wow, that’s the big one. That’s a causation.
Michelle Iarusso (31:56):
And then 11 to 1, no on did the defendant prove by clear and convincing evidence that it would have discharged her anyway? So we were mostly 11 to 1.
Bob Simon (32:09):
That’s impressive.
Michelle Iarusso (32:10):
We did have 12 to 1 did believe she was harassed. 12 to 1, they believed it was a hostile environment.
Bob Simon (32:18):
And for our listeners or viewers, California need 9 out of 12 in civil cases to carry on, on any question to go to the next. It doesn’t have to be the same nine jurors as we hear in a jury instructions over and over again. So Michelle, you’ve settled a lot of only six to seven figure verdict ones, but you’ve settled a lot of cases with these same type of nonprofit whistleblower type issues.
Michelle Iarusso (32:41):
Yes. In December of this year, I settled a case against UCLA. That was a nice solid six figure case. My client was still employed at the time, and that was a whistleblower case. That case was-
Bob Simon (32:55):
Does the government ever step in for you on these whistleblower cases, try to take the case from you to prosecute? Does that ever happen?
Michelle Iarusso (33:02):
No. So that would be like a qui tam case.
Bob Simon (33:05):
What’s the difference?
Michelle Iarusso (33:06):
So a qui tam case is basically where you-
Bob Simon (33:09):
That’s Q-U-I T-A-M, qui tam.
Michelle Iarusso (33:11):
That is where you find out that there’s some fraud going on, somebody’s overpaying, somebody’s defrauding the government. In California, you can also do a qui tam for insurance. Any insurance, not even just the government. That’s a separate statute, but same idea. So the qui tam case, you file that under seal and you give the government your information, and then they have time to determine whether or not they want to proceed. If they proceed, then they take it and you get some small fee. If they don’t proceed, then you can do it and you get a bigger fee.
Bob Simon (33:39):
Wow. Man, this is all… Because as anybody knows, we’re seeing a lot more cases go to verdict with these type of issues. I think finally, the employees are realizing that they have rights.
Michelle Iarusso (33:51):
Absolutely.
Bob Simon (33:52):
So what are some practical things, as you’re ending out the half hour session here, some practical use tips for people that want to explore these types of cases? If people are walking to their doors with these types of cases, what are some things they should practically do?
Michelle Iarusso (34:06):
I think first and foremost, you have to be really careful when you’re talking to your client and doing intake and letting them know that these are very deposition-specific, deposition heavy cases. When you have a car crash, everybody knows that there was a car that was hit. It’s just a question of whose at fault. When you’re looking at these cases, you don’t even know that there’s a there there until you start the discovery. So things can get really good and things get really bad.
(34:30):
And so when you’re looking at these cases, you really have to decide who are the key people that I need to depose and what are the key documents that I need? And I think getting those depositions on calendar immediately and coming out of the gate with your discovery. I try to get my discovery out in 20 days. So doing that and setting the stage for that, I think is really important because you don’t want to get yourself heavily into a case and figure out that you don’t have a case there.
Bob Simon (34:59):
So rather than just sit stale, you try to prosecute heavy these cases in the beginning to get the discovery and the intake, maybe the key depositions to figure out if it’s the case.
Michelle Iarusso (35:10):
Absolutely.
Bob Simon (35:11):
Wow.
Michelle Iarusso (35:11):
Absolutely. Because if I’m doing 11, 14 depositions, when I’m spending 40-
Bob Simon (35:17):
I know.
Michelle Iarusso (35:18):
Nowadays actually, probably $50,000 in depositions.
Bob Simon (35:20):
Well at least you have the delay pay now on some of those.
Michelle Iarusso (35:23):
Before you even get to experts. And it’s a lot of time, it’s a lot of energy. We’re not doing necessarily six hour depositions. I’m not sitting with an expert for only one hour. So if I have a psych on the defense side, I might be with them for three hours. It’s really expensive to litigate, so you got to be careful.
Bob Simon (35:42):
Wow, Michelle, well, thank you for coming on. Go to justiceteamnetwork.com, any questions about these types of cases. But just outstanding verdict. Thank you for fighting for people like Ms. McCann, who I’m sure is so happy right now. She’s got to be so happy. Vindication.
Michelle Iarusso (35:56):
She’s happy. Her whole family’s happy. Her family’s thanked me.
Bob Simon (35:59):
Wow. So for all of our listeners or viewers, you go to justiceteamnetwork.com, ask any questions. But these cases are becoming more prevalent, and I didn’t know there was a niche for the whistleblower nonprofit arena, but here we have Michelle Larusso. Thank you, Michelle. Thank you for listening.
Michelle Iarusso (36:16):
Thank you, Bob.
