I’m beginning to compile a list of procedural errors made in cases that affected the outcome. This is simply because I want to make a checklist for myself in the futre, and it may help some other students out there…
1. Remember to appeal against both the fact that a finding was found in a Bench trial as well as the finding itself. In Robel v. Roundup Corp., 148 Wn.2d 35, 39, 59 P.3d 61 (2002), Defense attorney appealed the finding of fact for outrageous behavior, but not the fact that was correct. Supreme court overturned the finding of fact against the defense from appeal, but since defense didn’t appeal the facts correctness, lost the chance to challenge the fact on appeal. While this probably didn’t affect the outcome, it would have given defense a chance, and Justice Owens specifically called out that the fact wasn’t challenged, thus was accepted as correct. In the case, Robel worked for a deli department at a Grocery/Goods store. She hurt her back in fall on duty, and the store manager put her on light duty. Her co-workers didn’t like this, and teased her about her injuries. The Deli manager joined in, and made rude comments about her weight and personality. Robel complained, and the entire department was warned to stop their bad behavior. They didn’t, and Robel complained again. The store fired one of the bad actors in the department. Robel sued, and won. She probably won properly — I’m more interested in the fact that defense didn’t challenge the finding of fact as well as the finding of law. Defense could have argued that since Roundup corporation warned the employees to “cut it out” or face termination, then did terminate one of the offending employees when the employee refused to comply with the warning, a reasonable finder of fact could conclude that it acted reasonably to stop the outrageous behavior of its employees, that employees were acting outside their work scope when they refused to comply with its directive, and hence shouldn’t have to face vicarious liability for the continued bad behavior. ( In other words — we told them to stop and they didn’t. We even fired one when we found out they didn’t stop. Since they were told to stop, we shouldn’t be held liable for them continuing. All of these are reasonable steps to stop discrimination. Hence, the fact found by the Bench judge is incorrect. ) ( I know this is odd. “Finding the fact” means that the judge/jury allowed the fact to be evaluated. “The fact itself” refers to the outcome of the evaluation. Finding the fact is a procedure, and the fact is the outcome. Roundup corp did challenge the procedure, but not the outcome.
The dissenting judge says that the Defense claimed this to be a mixed finding of fact and law, and as such, should have been reviewed de novo. But, he admits, the finding of fact is incorrect: ”