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Lindberg v. California Dep't of Education10/31/2005
ch there was strong evidence of both proper and improper reasons for the CDE's adverse actions against Lindberg, a situation where the burden of proof might have played a prominent role; on the contrary, defendants continually maintained that Lindberg suffered no adverse action; (2) neither attorney placed unusual emphasis on the burden-shifting instruction in closing argument; (3) the jurors were correctly instructed on the substantive elements of both causes of action and did not ask for any read back of testimony or clarification of any instruction as to liability; (4) the verdict was swift and unanimous; and (5) the jury deemed evidence of retaliatory motive so convincing that they found that Eastin harbored malice with respect to the Government Code section 8547.8 violation.
All indicators lead to the conclusion that the jury found this to be a clear, powerful and compelling case of employment retaliation. Defendants have simply not made a persuasive case that the erroneous instruction had any substantial effect on the ultimate result.
Accordingly, we find no reasonable probability that the giving of the burden-shifting instruction "`prejudicially affected the verdict.'" (Soule, supra, 8 Cal.4th at p. 580; see also Rutherford, supra, 16 Cal.4th at pp. 984-985 [improper burden-shifting instruction on causation in asbestos exposure case held non-prejudicial].)
VIII. Alleged "Coaching" of Lindberg by the Trial Judge
Twice during his testimony, the trial judge admonished Lindberg to shorten his answers and concentrate on the question being asked. About midway through Lindberg's cross-examination, the judge took a different tack. Out of the presence of the jury, he reminded Lindberg that this was a "straightforward case" and that he did not need to make his answers to the questions any more difficult than they were. The judge also told two brief anecdotes about litigants before him who had obtained very successful results by giving one word responses on cross- examination, including one plaintiff who "got close to three million bucks." The judge concluded, "I would appreciate very much your answering succinctly, fairly direct, and what I think are obvious questions, so Mr. Garcia [(Lindberg's counsel)], if you could help us on this."
Defendants, in their motion for new trial, characterized the judge's advice to Lindberg as prejudicial misconduct. The court rejected that claim, pointing out that it was merely "appealing to Mr. Lindberg's self-interest" in an attempt to get him to answer questions directly. While the judge agreed that perhaps he should have used different language, he felt the comments were within his statutorily authorized discretion to run an effective trial.
On appeal, defendants continue to characterize the court's comments as witness coaching, evincing improper bias toward the plaintiff and warranting reversal of the judgment for judicial
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