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A California jury has rejected a sexual harassment and wrongful termination claim brought by a former law firm paralegal, instead awarding her former boss $1.25 million in his countersuit for defamation.

The verdict in favor of Oakland, Calif. lawyer Thomas Ostly includes a $100,000 punitive award after the jury of 10 women and two men found that the plaintiff, Allison Moreno, acted with malice by making claims that Ostly sexually assaulted her.

“It’s an extremely exciting case,” said Shane K. Anderies of the San Francisco firm Anderies & Gomes, who represented Ostly. “We’ve been getting calls from lawyers throughout the state who have similar claims.”

Moreno sued Ostly and the law firm, formerly known as Ostly Murphy & Vu (now Murphy, Vu, Thongsamouth & Chatterjee), claiming that Ostly pressured her into having a sexual relationship, and then fired her after she tried to call it off.

Ostly claimed that they had a consensual sexual relationship, and that she was not fired. Instead, he claimed, Moreno walked off the job after he criticized her job performance. Ostly also claimed that she began telling others that he was a sexual predator.

Deposition a focal point

While the three-week trial featured a host of testimony from experts and other witnesses, the main focus was the testimony of the parties in the case. In particular, Anderies said he sought to point out discrepancies between Moreno’s trial testimony and her previous statements in videotaped depositions.

According to Anderies, Moreno tried to explain the change in testimony by noting that the depositions were conducted by Ostly himself, and she was intimidated by him.

Anderies, who conducted some of the depositions, said that Ostly chose to do some himself to keep costs in the case down, and dismissed Moreno’s claims of intimidation.

“I was with him when he took the depositions,” Anderies said. “For someone who had this claim made against him, he remained very calm and completely professional.”

The use of the videotaped depositions garnered the attention of media outlets, some of which questioned the wisdom of Ostly’s decision to depose Moreno himself.

“I knew there was no need for concern” about introducing the Ostly-conduced deposition testimony, said Anderies. “There were some articles [published] with lawyers commenting that it was stupid for us to allow him to do that. I understand why people say that. There is the saying that a lawyer who represents himself has a fool for a client. But he managed to stay completely calm and professional. I mean, it was videotaped. The jury could see his demeanor for themselves.”

Tale of the texts

Another crucial – and extensive – category of evidence in the case, Anderies said, were the transcripts from text messages and instant messages exchanged between Ostly and Moreno.

“This case took a long time [because] there were hundreds of pages of instant messenger transcripts and text message transcripts,” Anderies said. “We spent a great deal of time showing the jury these messages.”

The messages were crucial in defending Moreno’s claim that the sexual relationship with Ostly was nonconsensual.

“It was clear she had no credibility with the jury,” Anderies said.

In the end, the jury ruled in the defense’s favor, clearing the firm of wrongdoing and awarding Ostly $1.15 million in compensatory damages and $100,000 in punitives on his defamation claim.

A call seeking comment from Moreno’s attorney, Jose Luis Fuentes, was not returned.

Defense/cross-plaintiff’s attorneys: Shane K. Anderies and Allan J. Gomes of Anderies & Gomes in San Francisco.

Plaintiff’s/cross-defense attorney: Jose Luis Fuentes of Siegel & Yee in Oakland, Calif.

The case: Moreno v. Ostly; Aug. 2, 2010; Alameda County Superior Court, Oakland, Calif.; Judge Jo-Lynne Lee.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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