1.INTRODUCTION

The evidence to be presented to the jury in the punitive damage phase of a trial is directed towards reprehensibility and financial data. Under no circumstances should the defense be permitted to re-litigate or re-argue the finding of liability or, more particularly, the findings of malice and oppression.

2. THE PRIOR JURY ADJUDICATIONS ARE BINDING IN THIS PHASE

It is established that issues adjudicated in an earlier phase of a bifurcated trial are binding in later phases and may not be re-litigated. Arntz Contracting Company v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 487, 54 Cal.Rptr.2d 888; Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 50, 31 Cal.Rptr.2d 378.

In Arntz, involving the termination of a general contractor from a public works project, the parties stipulated to a threephase trial in which certain claims for indemnity were tried before the court in the initial phases followed by breach of contract and tort claims tried to a jury. After concluding the early phases, the Court asked the parties to prepare a statement of the case to be read to the jury in the third phase. Each side submitted argumentative statements that presented skewed accounts of the case and the Court's findings in the earlier phase. The Court then prepared its own statement of the case and, after the parties failed to reach an accord, read to the jury its modified statement of decision from the earlier trial phases which the jury was instructed to accept as true. The appellant asserted that the Court usurped the province of the jury by removing material issues of fact. The Court of Appeal rejected the appellant's attack upon the reading of the Statement of Decision, stating that, while the Court did not endorse wholesale introduction of Statements of Decision from one phase of a bifurcated trial into another phase, there was no error in doing so since the trial court gave the parties an opportunity to prepare an objective statement of the case. "The Court was entitled to prepare its own statement of the case and crafted from its statements of decision which had already passed through the crucible of the parties' objections and proposed modifications."

The second phase, however, should not turn into a collateral attack or effort to undermine the findings of the prior jury, and the defendants should therefore be precluded from arguments or from attempting to reintroduce evidence whose purpose is to rebut the findings of harassment and of corporate ratification and approval, or which is intended to impugn the Plaintiff, to rehabilitate defendants or to attack the credibility of witnesses who testified in the first phase and whose testimony implicitly accepted by the jury.

Having been found guilty of malice and oppression as well as sexual harassment and retaliation, these issues are binding on this defendant. See Torres v. Auto Club of Southern California (1997) 16 Cal.4th 89, 63 Cal.Rptr.2d 859, holding that upon retrial it is necessary only for the second jury to be advised of the prior jury's determinations on liability and damages. See also Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 801, 197 P.2d 713. The defense should not be afforded a second bite of the apple in the retrial of the punitive damage issues.

3. THE DEFENSE SHOULD BE REQUIRED TO MAKE AN OFFER OF PROOF AS TO ANY EVIDENCE CONTROVERTING THE PRIOR JURY VERDICTS

To avoid permitting a collateral attack on the prior verdict, the defense should be required to make an offer of proof before introducing any testimony or evidence used in the first trial phase which was used to attack or impeach plaintiff's case. Defendant should be required to demonstrate that such evidence is admissible in this phase for some purpose other than to disprove the statutory violations, to attack the amount of compensatory damages or to contest the existence of malice or oppression.

4. THE JURY SHOULD BE GIVEN THE FACTUAL BASIS FOR THE LIABILITY VERDICT AND FINDING OF MALICE AND OPPRESSION EITHER BY SUMMARY OF THE TESTIMONY OR BY REPLAY OF SELECTED TESTIMONY

Once the initial barrier of showing malice or oppression has been passed, "the quintessence of punitive damages is to deter future misconduct by the defendant." Adams v. Murakami (1991) 54 Cal.3d 105, 110, 284 Cal.Rptr. 318.

Ë No relitigation of malice and oppression issues.

Defendant should not be allowed to relitigate their tortious state of mind or intent, since the finding of malice carries with it the determination that defendants acted with evil motive." Burnett v. National Inquirer, Inc. (1983) 144 Cal.App.3d 991, 215-216, 193 Cal.Rptr. 206; Bertero v. National General Corp. (1974) 13 Cal.3d 43, 66 118 Cal.Rptr. 184. BAJI 14.

Ë Impact on Others.

The jury should give evidence bearing on the impact on other employees of unlawful practices. "One measure of a party's culpability is the number of persons affected by the errant conduct." Delos v. Farmers Ins. (1979) 123 Cal.App.3d 642, 667, 155 Cal.Rptr. 859. The reasonableness of an award also requires consideration of "the likely potential harm to others arising from the complained of conduct." Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1167, 74 Cal.Rptr.2d 510. See Colonial Life & Accident Ins. v. Superior Court (1982) 31 Cal.3d 285, 785, 792, 183 Cal.Rptr. 810, holding that evidence supporting punitive damages may includes a pattern of unfair and prohibited practices towards others than plaintiff. Moore v. American Life Insurance Co. (1984) 150 Cal.App.3d 610, 197 Cal.Rptr. 878 (evidence that deceptive claims practices had been employed in a number of cases was relevant to punitive damages because it "had the potential of defrauding countless insureds other than plaintiff.")

Ë Mitigating Factors.

ADS argued in the prior trial that punitives should not be large because it has now "learned the error of its ways" following the compensatory award; that it has suddenly "reformed" itself. But it introduced only argument, not evidence of any effort to reform itself. While contrition which is reflected in actual conduct prior to trial might have been admissible (see Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1166-1167, 74 Cal.Rptr.2d 510 finding remedial acts a factor in punitive award), mere argument is of no evidentiary value and only serves to go outside the record and the real evidence.

5. DOES THE JURY IN CONSIDERING REPREHENSIBILITY CONSIDER OTHER ACTS

Does the "reprehensible acts" considered in fashioning a punitive award include other acts not directed to the party plaintiff? Yes. Such acts were specifically held admissible under Bihun v. AT&T Information Systems, supra, 13 Cal.App.4th 976, 16 Cal.Rptr.2d 787, Weeks v. Baker & McKenzie, supra, 63 Cal.App.4th 1128, 74 Cal.Rptr.2d 510, and other cases cited above.

There is no danger that evidence of other acts, if received, will somehow taint or influence the jury into determining that defendant's acts to others mean it acted that way to plaintiff. (See, Evidence Code ?1102)

Reprehensibility includes acts directed towards plaintiff as well as acts taken by defendants to cover up conduct:

1. Retaliation against the plaintiff and others for raising the issues;

2. Corporate culture which allows such conduct;

3. Failure of corporate policies to prevent or correct bad acts;

4. Corporate cover-ups;

5. Delaying resolution of controversy; and

6. Failure to heed the advice or warnings of others.