On Nuisance Value, Corporate America, and Pricing Human Dignity

Guy works as a concrete finisher. Call him Daniel. It's a tough job. Making $18 an hour. Out there in the Florida heat. 87 degrees and humid. Feels like you're walking around in a bowl of soup. And Daniel doesn't mind doing the work. He just doesn't want his boss calling him the n-word. Like every day. N-word this. N-word that. If this was back in slavery times, I'd whip you... you know..

We call these types of cases overseer cases. We have a couple cases like this. Wild times.

So Daniel goes to HR. He explains the situation. HR promises they will handle it. But it keeps happening. So Daniel goes back to HR. And the company fires him. Yep, that's right: We don't need you anymore. You're fired.

Daniel dusts himself off. Does some temp labor for a couple weeks. Then finds a new permanent job. He gets a lawyer. Files a lawsuit.

And here's what corporate America says: Daniel has no real damages. The guy was making $18 an hour. He got another job within a couple weeks. He's only out of pocket maybe $3,000. The case is worth nuisance value. Pollard is just an unmitigated crazy person -- out here demanding $1 million. Who does he think he is!

As corporate America tells it... Daniel has no real damages because he's not out of pocket more than $5,000 or so.

Corporate America, insurance companies, and the defense bar are pushing this narrative that the only real damages are economic damages.

But that's not what the law says.

What is the law? Well, that all depends on what claim or legal theory we are traveling on. Let's stick with Daniel. It's the one hitter quitter. 42 USC 1981. The Civil Rights Act of 1866. Yes, 1866. THE original civil rights act.

Under 42 USC 1981, there are no damage caps. A plaintiff can get compensatory AND punitive damages.

The defense bar throws around this term "garden variety" emotional distress. They pretend like there is a law or rule that when a person claims they have emotional distress and it's just "garden variety" emotional distress, then the plaintiff can only recover $30,000 maximum on that bucket of compensatory damages. They treat this as gospel. But it's not. It's bogus.

There is a Florida District Court of Appeals case that basically says this in the employment discrimination context.

But guess what? I don't file these cases in state court. 1981 is a federal law. You know who makes federal law? Congress. You know decides how federal law applies? Federal court judges.

You know where a random Florida state court decision advancing the "garden variety" damage cap theory has absolutely ZERO weight? Federal court.

Federal courts where we practice, particularly the 11th Circuit, have rejected the "garden variety" damage cap narrative. It's a myth created by the defense bar. They took one Florida DCA case and pretend like that case applies everywhere, to every case and claim.

Where does this go and what is this all about? I'll tell you.

Over the past couple years, there has been a wave of very large jury verdicts. Very large verdicts on compensatory damages -- damages intended to compensate a person for non-economic injuries, emotional distress, loss of dignity, humiliation, depression, everything. And, along with that, very large punitive damage awards. These are often called nuclear verdicts.

This is what corporate America fears. They fear the nuclear verdict. And they are constantly bitching and moaning about compensatory damages being out of control. About economic damages being the only real damages. But that's not true.

What about a person's dignity? What about a person's humanity? What about the type of harassment and abuse that crushes a person's spirit and soul? What about that?

I remember the last time someone called me the n-word to my face. That got real ugly real fast. In fact, I remember every single time in my entire life that someone called me the n-word. I remember being 7 years old the first time someone called me the n-word and I didn't even know what it meant. Then I went home and found out what it meant. And I was devastated by how mean and hateful it was.

Can you imagine being a grown man. A Black man. Working as a concrete finisher. Breaking your back out there every day on the job. Just trying to make a living and feed your family. And your supervisor is screaming the n-word at you. And then you go to HR. And they fire you.

Tell me again that's only worth $5,000. Because Daniel was only making $18 an hour. Tell me again that the value of a person's dignity is inextricably fixed to how much money they make. Tell me again that Daniel doesn't have any real damages.

Tell yourself that. Keep telling yourself that. Then go tell it to a jury. And let's see what happens.

People say... Pollard ... he's crazy. He switches from non-compete and trade secret cases to plaintiff-side employment cases.

And all the sudden he's making these outrageous demands. $500,000. $1 million. $2 million. But he hasn't taken any of these plaintiff-side employment cases to trial yet. Who does he think he is!

I'm me. Let's start there and get that one straight.

Ten years ago, I got jammed up in a non-compete case. My clients got hit with a preliminary injunction. They were teetering on the brink of bankruptcy. I filed an appeal in the United States Court of Appeals for the 11th Circuit. I had opposing counsel and a mediator tell me that I would never win. They basically laughed in my face. I had never done an appeal before. Anywhere. In any court. Let alone in federal appellate court.

I won the appeal. Then I moved to recuse a federal judge. Yep. That got denied but it set the record straight. And then I beat a renewed bid for a preliminary injunction. Then I won partial summary judgment.

So I've heard this sort of argument before... basically, "Pollard, you can't do this because you haven't done it yet!"

Nonsense. Sheer applesauce. We've got dozens of cases out there in active litigation. Dozens more in the hopper about to be filed. At the end of the day, I don't get to make the decision about whether to settle or go to trial. I can recommend. I can encourage. I can strongly advise. But I don't get to make that call.

Look, it takes a real rider to turn down a $700,000 or $800,000 settlement and go to trial. Especially when it's a poor person and that's already life-changing money.

But it's inevitable. It's just a matter of numbers and odds. Eventually, there will be a case where either (a) the company is so dumb and their settlement offer is so low that going to trial is a no brainer or (b) the case is so ugly and worth so much money at a jury trial that the client will just roll the dice.

This is called proof of concept. I wager that Daniel's case is worth a lot more than $5,000. I wager that it's worth more like $5 million. Let's go find out.