Top Defense Verdicts -- One Unnamed District Attorney v. County of Los Angeles

Free speech is a two-way street. At least that's what lawyers for Los Angeles District Attorney Steve Cooley argued before a jury in an employment retaliation case in December. Two former presidents of the deputy district attorneys' union said Cooley took adverse action against them for their union activity, in part by issuing a memo denouncing the claims of unnamed employees about his stance toward the union. But just as the deputy district attorneys, Hyatt Seligman and Steve Ipsen, had the First Amendment right to criticize Cooley, the district attorney had the same right to fire back, said Brian D. Hershman of Jones Day, who led the trial team for the defense.

"He had a right to say his opinion," Hershman said. "That didn't constitute an adverse employment action."

The argument won over the jury, which found for the defense on all causes of action.

The result was good not only for the county, but also for Cooley's career, Hershman said.

"He was never anti-union," Hershman said. "What had been seen as a stain on his legacy had been lifted."

The defense team also set an important precedent, Hershman said, by establishing that the county would not have been liable for Cooley's actions if the jury had found that he did retaliate. Called Monell liability after the U.S. Supreme Court case that created the precedent, the plaintiffs had to prove that Cooley was the final policy maker for job transfers. Hershman's team successfully argued that the county's Board of Supervisors sets the policies affecting job transfers, and the district attorney merely follows those policies.

There were some obstacles to clear in convincing the jury that Cooley never retaliated, however.

"There had been a scathing opinion of a hearing officer for the employee relations commission accusing Mr. Cooley of engaging in retaliation," Hershman said. U.S. Magistrate Judge Jay C. Gandhi excluded the decision from being presented as evidence, which the defense said was preliminary and likely to change as the commission continued looking into the accusations.

- LAURA HAUTALA

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