the United States Court of Appeals
PUBLIC SCHOOLS, MULTNOMAH SCHOOL DISTRICT NO.1;
Appeal from the United States District Court for the District of Oregon Janice M. Stewart, Magistrate Judge, Presiding D.C. No. CV-00-00313-ST
Before: Dorothy W. Nelson, Alex Kozinski and M. Margaret McKeown, Circuit Judges.
The opinion of the court was delivered by: Kozinski, Circuit Judge.
October 7, 2003
We consider the standard of review applicable to various post-trial motions following a jury verdict.
Many facts were hotly disputed at trial. We state them here consistent with the verdict.
Dr. Pamella Settlegoode was hired by Portland Public Schools as an Adapted Physical Education teacher for the 1998-99 academic year on a probationary basis. Hired to teach students with disabilities in various schools in the district, she was an itinerant teacher and therefore conducted her physical education classes at two or three different schools each day. Her job included teaching the disabled students as well as drafting individualized education programs (IEP) for them, as mandated by federal law. See 20 U.S.C. § 1414(d).
Settlegoode soon became concerned about the way disabled students were treated in the Portland schools. She had trouble finding a place to teach her high school students; material and equipment were often lacking, inadequate or unsafe. Settlegoode tried to talk to her immediate supervisor, Susan Winthrop, about these problems. Winthrop told Settlegoode that she was the only one who had ever complained about the facilities for disabled students, and Winthrop frequently attempted to change the subject. At the end of her first year of teaching, Settlegoode wrote Winthrops supervisor, Robert Crebo, a ten-page letter expressing her concern that the Adapted Physical Education program suffered from problems of [s]ystematic discrimination, mal-administration, access, pedagogy, curriculum, equity and parity, and greatly compromised federal law. E.R. at 132. She described her negative experiences in several different schools in the district, comparing the treatment of disabled students to that of black students before the Civil Rights Movement. In sum, she wrote, these sketches offer a portraiture of a form of education that is . . . all too familiar in this country. It wasnt all that long ago when Black African Americans took a back seat on the American School bus (though in Portland, theres still lots of Separate, but equal to go around). Id. at 141. Settlegoode also criticized Winthrop in this letter, claiming that Winthrop was dismissive of Settlegoodes concern for her students, and that Winthrop was too tied to the school bureaucracy to be in touch with the needs of disabled students.
Crebo gave Settlegoodes letter to Winthrop for comment. Winthrop replied with a memo to Crebo stating: It is of concern to me that a staff member with such limited experience has the potential to defame my character and damage my professional reputation. Id. at 144. Winthrop ended with, I appreciate your support in this. Id. Crebo then asked Winthrop to draft a response to Settlegoodes letter and to investigate Settlegoodes accusations. In the meantime, Winthrop told Settlegoode to stop writing letters, because it was not an effective means of communicating. S.E.R. at 61.
Crebos response to Settlegoodes letter defended Winthrop and the school districts treatment of disabled students. The letter ended by stating: It is puzzling to me that with this limited experience youve made such critical comments about our system. It is unfortunate that you are so dissatisfied with your teaching position in Portland Public Schools. Id. at 155.
During Settlegoodes first year of teaching, her performance evaluations were generally positive. In all categories, Winthrop wrote that Settlegoodes performance met minimum standards. She elaborated that Settlegoodes instruction was well planned, appropriate, and of high interest. Id. at 222. She also wrote that Settlegoode is supportive of students, giving them good feedback and treating them with respect, and that she has creative ideas and effectively uses unique materials to enhance activities. Id. With regard to the preparation of IEPs for her students, Winthrop explained that, Ms. Settlegoode is working to develop her skills in writing IEP goals and objectives which are measurable. She has not yet had opportunities to prepare evaluation reports. Id.
Winthrops evaluations after Settlegoodes letter were much more negative. Settlegoode no longer met minimum standards of performance in several areas, including IEP writing, behavior management practices, ability to maintain maximal instruction time for students, ability to interact positively with administrators, supervisors and colleagues, and ability to interact positively with parents and students. Winthrop noted in the evaluations that Settlegoode is not writing IEP goals which are measurable nor is she establishing baseline data in the Present Level of Education Performance (PLOP). IEP objectives do not consistently include specific student behavior and measurable criteria. Id. at 232.  Winthrop also wrote that Settlegoode was strong, outspoken, and demanding, and that she was not able to listen to constructive criticism, complete a self reflective process, and improve professional behavior. Id. at 235. The evaluation ended by stating that, [i]f Dr. Settlegoodes work continues at its present quality, renewal of contract for another year cannot be recommended. Id. at 237.
Settlegoode next wrote a fifteen-page letter to Dr. Ben Canada, the superintendent of Portland Public Schools, claiming that she was being retaliated against for complaining about the treatment of her students. She also reiterated her contention that the facilities for disabled students in the school district were inadequate. She claimed these conditions were discriminatory. Id. at 172. Canada testified that at that point . . . [c]counsel [was] involved. Id. at 335.
Crebo then responded to Settlegoodes letter to Canada. He wrote:
Crebo also wrote a memo to Canada, saying that it was likely that . . . [Settlegoode] will not be recommended for renewal. Id. at 178. The memo explained that Settlegoode had been writing lengthy letters to her supervisor and the Director of Special Education that were hostile, accusatory, and demanding, and that she had been highly critical of special education services, administrators, and other staff. Id. The memo also discussed Settlegoodes difficulty in communicating with her colleagues and managing groups of students, and her lack of responsiveness to constructive feedback. Id.
Settlegoodes final evaluation noted improvement in some areas, but stated that she was still deficient in writing IEPs, that her communication with others continues to be difficult, and that she had problems monitoring groups of students. Id. at 240-44. It also stated that her performance fell below district standards and that her contract would not be recommended for renewal. Id. at 245. The School Board then met about whether to renew Settlegoodes contract and decided not to. S.E.R. at 198.
Settlegoode brought suit against the Portland Public Schools, Winthrop and Crebo, alleging that defendants violated section 504 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978, 29 U.S.C. § 794, Settlegoodes First Amendment free speech rights under 42 U.S.C. § 1983, and Oregons Whistleblower Act, ORS 659A.200-.224. A jury found for Settlegoode on all claims and awarded her $500,000 in non-economic damages and $402,000 in economic damages. In addition, the jury awarded $50,000 in punitive damages against both Winthrop and Crebo under section 1983.
The magistrate judge granted defendants motion for judgment as a matter of law on all three causes of action, and held that Winthrop and Crebo were entitled to qualified immunity on the section 1983 claim. The magistrate also granted defendants motion for a new trial because she found Settlegoodes counsel had engaged in misconduct. Not surprisingly, Settlegoode appeals.
A district court may set aside a jury verdict and grant judgment as a matter of law only if, under the governing law, there can be but one reasonable conclusion as to the verdict. Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1283 (9th Cir. 2001); Fed. R. Civ. P. 50(b). When evaluating such a motion, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
We consider plaintiffs section 1983 claim first because, if she succeeds, the issues pertaining to the remaining claims become redundant and therefore moot. The section 1983 claim, moreover, is the only one supporting punitive damages and we must therefore address it at some point, regardless of the other claims. In other words, the section 1983 claim is both necessary and sufficient to sustain the jurys full verdict.
When a government employee alleges that he has been punished in retaliation for exercising his First Amendment rights, we engage in a three-part inquiry: To prevail, an employee must prove (1) that the conduct at issue is constitutionally protected, and (2) that it was a substantial or motivating factor in the punishment. Even if the employee discharges that burden, (3) the government can escape liability by showing that it would have taken the same action even in the absence of the protected conduct. Keyser v. Sacramento Unified Sch. Dist., 265 F.3d 741, 750 (9th Cir. 2001). The magistrate judge found that Settlegoode presented substantial evidence that the content of her speech reporting violations of the law by the District was a factor . . . for the non-renewal decision, Settlegoode v. Portland Public Schools, CV-00-313-ST, slip op. at 30 (D. Or. Jan. 31, 2002), but held that defendants prevailed on the third element of the Keyser test. According to the magistrate judge:
The inadequacy of Settlegoodes IEPs, however, is not nearly as clear as the magistrate judge seemed to believe. The only documentary evidence that Settlegoodes IEPs were inadequate consists of Winthrops evaluations, which were written after Settlegoode had sent her first letter criticizing her and the school district. Winthrop also criticized Settlegoodes IEPs in her testimony but, as the magistrate judge recognized, the jury could have disregarded her testimony because of her interest in the case. Reeves, 530 U.S. at 151. The only other evidence concerning Settlegoodes ability to write IEPs came from Carol Matarazzo, the former Assistant Superintendent of Portland Public Schools. Matarazzo, however, testified that she never even saw Settlegoodes IEP drafts, nor made any independent evaluation of Settlegoodes performance. She also admitted that she was not directly involved in the evaluation of probationary teachers, Tr. of Trial at 1390 (No. CV 3-00-313-ST) (Nov. 14, 2001), and that all of her impressions of Settlegoode were based on reading Winthrops evaluations. Id. at 1391. When asked about her participation in the decision not to renew Settlegoodes contract, she explained: I read through all of . . . [Winthrop and Crebos] evaluations and talked to Ms. Winthrop, her supervisor, and to Bob Crebo before deciding that Settlegoode would not be able to be a satisfactory teacher. Id. at 1395. This would hardly allow Matarazzo to form an independent opinion of Settlegoodes ability to draft acceptable IEPs. Thus, evidence of Settlegoodes deficiencies in writing IEPs hinged entirely on Winthrops word, which the jury was certainly entitled to disregard.
At the same time, there is no evidence that defendants discarded or even substantially revised Settlegoodes IEP drafts. Writing IEPs is a dynamic, collaborative process, one that involves a group of parents, teachers and administrators working together to prepare an education program suitable for a disabled child. See 20 U.S.C. § 1414(d)(1)(B). No single teacher writes an IEP alone. A teacher may draft a section of the IEP, but ultimately that section is evaluated by the IEP team and incorporated into an overall program for the student. IEPs are mandated by federal law and create legally enforceable rights and obligations that bind the district and the pupil for at least an entire school year. See id. § 1414(d)(2). A school district thus has both the legal obligation and the incentive not to import a poorly drafted section into an IEP. One would expect that a truly inadequate IEP would be substantially criticized, revised or discarded. As one administrator testified, in the Portland schools, inappropriate or substandard IEPs were noted at IEP meetings and corrected. E.R. at 431-32.
Yet the only evidence that anyone ever altered one of Settlegoodes IEPs came from Larry Whitson, who testified that he changed a single page of one of Settlegoodes IEPs recommending Tai Chi for a student. Whitsons changes, however, did not reflect Settlegoodes inability to write IEPs with measurable goals-the main criticism listed in her evaluations-but concerned a substantive disagreement about whether Tai Chi was an appropriate skill for a disabled child to learn. Whitson never said Settlegoodes IEP was objectively inadequate or failed to include measurable goals. No other evidence was presented at trial that Settlegoodes IEPs were found to be defective during the IEP process.
Settlegoode presented this argument to the magistrate judge, who rejected it, explaining:
Settlegoode, CV-00-313-ST, at 15 (emphasis added). However, it is clear that the burden in section 1983 claims is, indeed, on defendants to show that they would have taken the same action even in the absence of the protected conduct. Keyser, 265 F.3d at 750.
Even if defendants had shown that Settlegoodes IEPs were inadequate, that still would not have been enough under Keyser. Defendants were required to show that they would have taken the same action even in the absence of the protected conduct. Id. (emphasis added). Proof that Settlegoodes IEPs were deficient only tells us that the school district could have chosen not to renew Settlegoodes contract for reasons independent of the protected conduct. The magistrate judge said almost nothing about this distinction, but it is a crucial one. Defendants, for example, offered no evidence that other teachers had been fired for drafting inadequate IEPs in the past or that it was unusual for new teachers to struggle with IEP writing. To the contrary, two teachers in Settlegoodes department testified that drafting IEPs is difficult, that it is easy to criticize any IEP and that IEPs would be a good place to create a paper trail. Tr. of Trial at 133 (CV 3-00-313-ST) (Nov. 6, 2001). As the burden is on the defendants to show Settlegoodes contract would not have been renewed, even if she had kept silent, we cannot agree with the magistrate judge that they made a sufficient showing under Keyser.
The jury specifically found, as indicated on the verdict form, that defendants did not prove[ ] by a preponderance of the evidence that they would not have renewed Dr. Settlegoodes contract for reasons other than Dr. Settlegoodes protected speech. E.R. at 637. In bringing their Rule 50 motion for judgment notwithstanding the verdict, defendants must vault a very high hurdle: They must show that no reasonable juror could have found that the school district would have renewed her contract but for her speech. At best, they have shown that whether Settlegoodes inadequate IEPs were the reason for her termination, or whether they were inadequate in the first place, is a close call. In such circumstances, the rule is clear: The verdict trumps.
2. The magistrate judge also held that defendants Winthrop and Crebo are entitled to qualified immunity under section 1983. Public officials are immune from liability for section 1983 damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Where plaintiff is a government employee claiming violations of his First Amendment rights, he must show that two things were clearly established: (1) that his speech involved a matter of public concern, and (2) that the interests served by allowing him to express himself outweighed the states interest in promoting workplace efficiency and avoiding workplace disruption. Keyser, 265 F.3d at 747; see also Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (announcing the balancing requirement for First Amendment claims in the context of government employment). When balancing interests under the second prong of the test, defendants must show actual injury to . . . legitimate interests beyond the disruption that necessarily accompanies such speech. Keyser, 265 F.3d at 749 (quoting Johnson v. Multnomah County, 48 F.3d 420, 427 (9th Cir. 1995)). The magistrate judge found that plaintiffs speech [was] within the ambit of the First Amendment, and thus was a matter of public concern, Settlegoode, CV-00-313-ST, at 30, but held that the balancing of interests under the second prong of the qualified immunity test did not weigh clearly in Settlegoodes favor. The magistrate erred once again.
The magistrate judge started off on the wrong foot by failing to acknowledge the jurys determination of this issue, and thus did not consider the qualified immunity question in light of the demanding Rule 50 standard. The jury here was properly instructed that, [b]ecause some anger or unhappiness necessarily accompanies speech on issues of public concern, Defendants must prove that the School District suffered an actual injury to its legitimate interests beyond mere disruption of the workplace. E.R. at 540. The jury was also given the appropriate list of factors to consider in making this determination, including whether Dr. Settlegoodes protected speech impeded the School Districts abilities to perform its duties efficiently; . . . the manner, time and place of her protected speech; and . . . the context in which she made the protected speech. Tr. of Trial at 1539-40 (No. CV 3-00-313-ST) (Nov. 15, 2001).
In light of these instructions, the jurys verdict in favor of Settlegoode necessarily reflected a finding that any disruption her comments might have aroused was outweighed by Settlegoodes interest in free expression. Thus, under Rule 50, the magistrate judge should only have found that defendants were protected by qualified immunity if it was quite clear that the jury . . . reached a seriously erroneous result. Ace v. Aetna Life Ins. Co., 139 F.3d 1241, 1248 (9th Cir. 1998) (quoting EEOC v. Pape Lift, Inc., 115 F.3d 676, 680 (9th Cir. 1997)).
We cannot see how the jurys finding could possibly be deemed seriously erroneous. There was a strong interest in allowing Settlegoode to express herself. Not only were Settlegoodes core First Amendment rights implicated, but her speech may have had important effects for the disabled students in the district and their parents. Teachers are uniquely situated to know whether students are receiving the type of attention and education that they deserve and, in this case, are federally entitled to. We have long recognized the importance of allowing teachers to speak out on school matters, Connick v. Myers, 461 U.S. 138, 162 (1983), because [t]eachers are, as a class, the members of a community most likely to have informed and definite opinions on such matters, id. (quoting Pickering, 391 U.S. at 572). This is particularly so with respect to disabled children, who may not be able to communicate effectively that they lack appropriate facilities. Teachers may therefore be the only guardians of these childrens rights and interests during the school day. Whether or not Settlegoodes assertions were accurate, or were communicated in the best manner possible, it is clear that the subject matter of her expression was of public importance.
At the same time, the school district presented very little evidence of disruption. Settlegoodes method for conveying her dissatisfaction with the adapted physical education program included sending internal letters and discussing the issue with supervisors. She made her concerns known through proper channels, and made no public statements about the school conditions. See Gilbrook v. City of Westminster, 177 F.3d 839, 868 (9th Cir. 1999) (a factor to consider when balancing interests under Pickering is whether the speaker directed the statement to the public or the media, as opposed to a governmental colleague). We are hard pressed to figure out what Settlegoode could have done that would have been more pleasing to the school district-except, of course, keep quiet.
Moreover, none of the testimony on which the magistrate judge relied shows actual injury to the district or to the adapted physical education program in any of the schools. Several teachers said they were hurt or upset by Settlegoodes letter, as one would expect in these circumstances, but there was no evidence that the letter had a devastating effect . . . on the cohesion of the APE teachers, as the magistrate judge found. Settlegoode, CV-00-313-ST, at 33. Gail Reynolds, a teacher in Settlegoodes department, testified that she was furious, [o]utraged, and [u]pset by the letter, but never described any actual injury to the department. S.E.R. at 94. In fact, she described just the opposite: after the letter, the department called a meeting to talk about positive outcomes, and how we were going to work together as a team and go forward from here. Id. at 95.
A second teacher, Jan Standlea, testified that she was surprised by Settlegoodes letter, E.R. at 464, but the rest of her testimony merely confirmed what Reynolds had said-that the letter prompted the teachers to discuss how better to cooperate with each other and how to improve physical education for disabled students. She explained in great detail the meeting that was held in response to the letter:
The meeting notes further demonstrate that Settlegoodes letter brought the teachers together to help make positive changes to their department and the physical education program, and that many of the teachers agreed with Settlegoode. The notes describe the [m]any legitimate issues mentioned in the letter, such as [a]ccessibility and [e]quipment needs, and say that Settlegoode has a lot of guts and that the letter will help us pull together, now we are on the same page. Id. at 248. A reasonable jury could have found that Settlegoodes letter was harmonizing, rather than disruptive.
The administrators who testified also failed to show that Settlegoodes letter was unusually disruptive or caused actual injury. Most of the administrators testimony commented on Settlegoodes communication style, and reflected frustration with being criticized in such a pointed manner. For example, the principal of the high school said she wanted Settlegoode out of my building, out of Franklin High School, id. at 472, because Settlegoode did not understand how a high school worked, id. at 469. The same principal elaborated that Settlegoode made charges against . . . my staff and made demands that they could not fulfill. Id. at 471. She described her relationship with Settlegoode as strained. Id. at 473. Nothing in her testimony, however, offered details of injury to the district, such as impaired discipline or control by superiors, conflicts between co-workers or interference with Settlegoodes performance of her duties-factors we generally consider when deciding whether actual injury occurred. Gilbrook, 177 F.3d at 867-68. The magistrate judge thus erred when she held that defendants had prove[d] that plaintiffs speech did significantly disrupt the provision of educational services by the District. Settlegoode, CV-00-313-ST, at 33-34.
The magistrate judge also erred in concluding that Settlegoodes First Amendment rights were not clearly established. See id. at 35. Whether Settlegoodes First Amendment rights were clearly established depends upon the sensitive ad hoc balancing that Pickering entails. Brewster v. Bd. of Educ., 149 F.3d 971, 980 (9th Cir. 1998). We must therefore consider whether, under the governing law, a reasonable jury could have found that the outcome of the Pickering balance so clearly favored . . . [plaintiff] that it would have been patently unreasonable for the school officials to conclude that the First Amendment did not protect [her] speech. Id.  As we explain above, the jury was more than reasonable in finding that the interests served by allowing Settlegoode to express herself outweighed any minor workplace disruption that resulted from her speech. Furthermore, it is well-settled that a teachers public employment cannot be conditioned on her refraining from speaking out on school matters. See Connick, 461 U.S. at 162; Pickering, 391 U.S. at 572. It would therefore have been patently unreasonable for Winthrop and Crebo to conclude that Settlegoodes speech was not protected. Winthrop and Crebo were not entitled to qualified immunity from Settlegoodes section 1983 claim.
Because we hold that the magistrate judges grant of judgment as a matter of law should be reversed with respect to Settlegoodes section 1983 claims, we need not address her other claims. Settlegoode is entitled to the full jury award, including the punitive damages assessed against Winthrop and Crebo under section 1983. She is also entitled to attorneys fees under 42 U.S.C. § 1988, which allows a prevailing party reasonable attorneys fees.
The magistrate judge also granted defendants a new trial because she held that Settlegoodes attorney, Gregory Kafoury, made improper arguments during trial that prejudiced defendants case. A new trial should only be granted where the flavor of misconduct . . . sufficiently permeate[s] an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict. Kehr v. Smith Barney, 736 F.2d 1283, 1286 (9th Cir. 1984) (quoting Standard Oil Co. of California v. Perkins, 347 F.2d 379, 388 (9th Cir. 1965)). There is an even high[er] threshold for granting a new trial where, as here, defendants failed to object to the alleged misconduct during trial. Kaiser Steel Corp. v. Frank Coluccio Constr. Co., 785 F.2d 656, 658 (9th Cir. 1986). A higher threshold is necessary for two reasons: First, raising an objection after the closing argument and before the jury begins deliberations permit[s] the judge to examine the alleged prejudice and to admonish . . . counsel or issue a curative instruction, if warranted. Hemmings v. Tidymans Inc., 285 F.3d 1174, 1193 (9th Cir. 2002) (quoting Kaiser, 785 F.2d at 658). Second, allowing a party to wait to raise the error until after the negative verdict encourages that party to sit silent in the face of claimed error. Id. We thus review for plain or fundamental error where no contemporaneous objection was made. Plain error review requires: (1) an error; (2) that the error be plain or obvious; (3) that the error have been prejudicial or affect substantial rights; and (4) that review be necessary to prevent a miscarriage of justice. Id.
According to the magistrate judge, Kafoury committed misconduct at several points during the trial by ignoring a pretrial order prohibiting evidence as to whether the districts programs for disabled children violated the law. The pretrial order precluded all testimony going to the merits of the districts programs; the only permissible evidence was whether plaintiff had been retaliated against for making good faith complaints. Settlegoode, CV-00-313-ST, at 45-46. The magistrate judge drew a line here that was not particularly clear. It would have been nearly impossible for Settlegoode to show that she acted in good faith because she was not raising baseless allegations, without allowing at least some evidence concerning the school districts programs. We therefore read the magistrate judges order narrowly and evaluate the specific instances of misconduct cited by the magistrate judge with this conundrum in mind.
The first alleged misconduct came during the examination of Judy Backer, the mother of one of Settlegoodes students. When Settlegoodes counsel called Backer to the stand, defendants objected that Backers testimony would violate the pretrial order. The court allowed the evidence, so long as it was specifically given to contradict Winthrops testimony that she . . . secured the ramp at Franklin High School, Tr. of Trial at 1434-35 (No. CV 3-00-313-ST) (Nov. 14, 2001), and not to discuss the quality of the special education program. The magistrate judge faulted Kafoury for ignor[ing] both the courts specific ruling as to Backer and its general rulings excluding program testimony. Settlegoode, CV-00-313-ST, at 47. We read the record otherwise.
Kafourys brief direct examination of Backer focused almost entirely on the ramp issue, confirming that it was Settlegoode, not Winthrop, who was crucial in obtaining the ramp. While some of Backers testimony may have induc[ed] sympathy for a student with a disability, id. at 47, none of counsels questions specifically elicited this testimony. Moreover, though Backers testimony may have prompted some sympathy for Settlegoode and her efforts, its substance simply did not violate the pretrial order precluding testimony about the programs merit. Backer described her disabled daughters enjoyment of tennis, and gave Settlegoode credit for making it possible for the child to participate in the sport. We do not see how this testimony bears on whether the school districts programs complied with the law. And while it may have been slightly off-topic from the ramp issue, we are aware of no authority for the proposition that counsel may never call a witness who may elicit sympathy from the jury while also providing relevant testimony. In short, what counsel did with respect to Backer falls well within the realm of vigorous, ethical advocacy.
The magistrate judge also cites as misconduct several of Kafourys statements in his closing argument, including some that referred to Backers testimony. The magistrate first criticized Kafourys comments that, [Winthrop] took away the tennis program. Broke the heart of this brave little girl suffering from the most cruel of disabilities. Did it just-just out of spite toward my client. Id. at 48. Though this argument may evoke sympathy, it also clearly goes to the heart of Settlegoodes retaliation claim. Settlegoode claimed that, not only was she fired, but her superiors first killed some of her programs in retaliation for her letter. This is a plausible argument in light of the record: Winthrop ended the tennis program, claiming it was glaringly unsafe, E.R. at 378, just after Settlegoode began voicing her criticisms of Winthrop and the school district. This is surely an acceptable argument to make in a retaliation case. While counsel used graphic terms such as brave little girl, most cruel of disabilities and spite toward my client to make his argument, we see nothing wrong with this. A trial lawyers job, after all, is to present his clients case in the most sympathetic light consistent with the evidence. Using some degree of emotionally charged language during closing argument in a civil case is a well accepted tactic in American courtrooms. Counsels argument here came nowhere near stepping over the line.
The magistrate judge also took umbrage at several other statements made during Kafourys closing argument. These statements included Kafourys use of the back of the bus metaphor taken from Settlegoodes letter, and remarks about how football players and dancers were given priority over special education programs because they are more valuable to the school community. We have held that where offending remarks occurred principally during opening statement and closing argument, rather than throughout the course of the trial, we are less inclined to find the statements pervaded the trial and thus prejudiced the jury. Kehr, 736 F.2d at 1286. In any event, Kafourys statements were not so inflammatory as to be especially troubling. In Bird v. Glacier Electric Cooperative, Inc., 255 F.3d 1136 (9th Cir. 2001), a closing argument rose to the level of misconduct where counsel, speaking to a jury comprised only of Indian tribal members, argued that an Indian-owned cooperatives loss of business was part of a legacy of injustice and colonialism and used colorful language to describe that legacy. Plaintiffs counsel argued: How can they trust any of their work to the likes of unskilled Indian contractors like these? Certainly the white mans magic is so much better . . . . I think you have seen a classic defense to castrating the . . . laws on the reservation. Id. at 1150. Kafoury, by contrast, was not seeking to inflame racial prejudices or even establish any special interest in the rights of the disabled. His comments referred specifically to the evidence admitted at trial, and he directed his comments to defendants and the situation at hand.
The magistrate judge also criticized Kafoury for mischaracterizing one of defense counsels statements in his closing argument. Defense counsel had said:
Settlegoode, CV-00-313-ST, at 51. Kafoury responded: Defense counsel said this is not about the children. The first thing she said. The second thing she said was, there is nothing you can do. If you dont like what youve heard, were going to keep doing what were gonna keep doing, and you cant stop us. Id. The magistrate judge held that this was a misrepresentation, when it plainly was not, and that it was inappropriate to urge the jury to send a message.  This case, however, involves a claim for punitive damages. Reminding the jury that they have the capacity to deter defendants and others similarly situated is certainly legitimate where punitive damages are at stake. Indeed, the magistrate judge instructed the jury that [p]unitive damages may be awarded . . . to punish the wrongdoer and to discourage the Defendant and others from engaging in wanton misconduct. Tr. of Trial at 1547 (No. CV 3-00-313-ST) (Nov. 15, 2001) (emphasis added). See also Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (holding that counsels actions did not rise to the level of misconduct where his closing argument called for punishment and to make sure . . . [defendants] never forget about [the accident]). A closing argument that tracks the jury instructions cannot possibly be misconduct.
The magistrate judge also held that Kafoury committed misconduct when he claimed defense witness testimony had been scripted and rehearsed by defense counsel. The magistrate judge cited no authority for the proposition that counsel may not assert that an opposing partys witness has been coached, and were aware of none. Where counsel believes that testimony came out sounding too stilted or polished, we see nothing objectionable in suggesting to the jury that the witness may have been parroting words scripted by someone else. Nor is there anything objectionable about Kafourys argument that the school district employees had been told to make paper trails to cover their tracks. After all, this kind of thing happens all the time, and there was evidence showing that school district lawyers were involved prior to Settlegoodes termination. That Kafoury had no direct evidence supporting these arguments is of little consequence; circumstantial evidence and inference are sufficient to support a legitimate argument. Kafoury is not a prosecutor, subject to constraints and responsibilities that dont apply to other lawyers. United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993). As an advocate in a civil lawsuit, he was perfectly entitled to argue that the jury should disbelieve the opposing partys witnesses for any number of reasons, including that they may have been guided by advice of their lawyers. The sanction for making such an argument is that it may boomerang if it does not resonate with the jury.
The magistrate judge found that, taken together, the various instances of misconduct were sufficiently prejudicial to defendants case as to merit a new trial. Even if we were to find that any misconduct occurred-and we have identified none-Kafourys conduct at trial could not have possibly affected defendants substantial rights. Even in cases where the trial court has found counsels behavior is outrageous, weve found no prejudice. See Kehr, 736 F.2d at 1285. Given that most of counsels statements were limited to his closing argument, which was well within the bounds of fair advocacy, and there was more than sufficient evidence for the jury to find in Settlegoodes favor, we hold that the magistrate judge abused her discretion in ordering a new trial.
We reverse the district courts judgment and remand with instructions that the court enter judgment for plaintiff consistent with the verdict, plus post-judgment interest and attorneys fees pursuant to 42 U.S.C. § 1988. We refer the case to the Appellate Commissioner for a determination of Settlegoodes attorneys fees on appeal.
IEP begins by measuring the student's present level of performance -affectionately
known as PLOP-which provides a benchmark for measuring the student's
progress toward the goals stated in the IEP.
* END *
read the decision from the U. S. Court of Appeals for the Ninth Circuit, you may want to go back to the beginning.
First, read the Complaint. Next, read the Draft Pre-Trial Order, then
the Jury Instructions. Next, read The Inside Story about
the case. Then read the Ninth Circuit's decision again. If you follow this
sequence, you will have an excellent understanding of
this case and how one teacher could take on a powerful school system
on behalf of children with disabilities.
Jury Instructions - After all witnesses completed their testimony and both parties rested, the attorneys presented the Court with proposed Jury Instructions. This led to discussion about what should and should not be in the instructions. Eventually, with the apparent agreement of both parties, the Judge wrote a 16-page narrative Jury Instruction. The Jury Instructions are at www.wrightslaw.com/law/pleadings/or.juryinstructn.settlegoode.pdf
Copyright © 2004, 2009 Peter W. D. Wright and Pamela Darr Wright. All rights reserved.