Damages in Employment Cases
What You Will Learn
ARE YOU READY TO FACE ALL OF THE COMPLEX DAMAGES ISSUES THAT WILL ARISE IN YOUR CASE? HOW WILL YOU DEAL WITH PROBLEMS LIKE THESE?
Defense counsel has moved under Rule 35 to have the defense forensic psychiatrist spend hours alone with your client discussing intimate aspects of her life and the details of her claim.
Plaintiff's counsel wants records of all discrimination complaints and investigations of the past five years, citing your Kolstad "good faith" defense to punitive damages.
The District Judge asks at a status conference if the decision to award front pay, or the amount of front pay, is an issue for the jury or the court.
You have to depose plaintiff's expert, whose report lists large amounts for stock options, pension benefits, prejudgment interest, and an income tax "gross up."
Defendant's counsel insists on a "forensic image" of your client's home computer and blackberry to look for mitigation evidence, evidence concerning claimed emotional distress and private, non-privileged communications about the case.
After trial, plaintiff's counsel demands your time records on the premise that they are relevant to the assessment of "reasonable" attorneys' fees and are not privileged.
Featuring renowned advocates with decades of experience in trying employment cases, distinguished federal judges, and experts who testify regularly, this program provides state-of-the-art answers to these and many other damages questions. You will come away from this interactive two-day seminar with checklists, new approaches, and hot tips for dealing with important damages problems.
SHOW ME THE MONEY! IN THE END, IT'S ALL ABOUT HOW MUCH THE PLAINTIFF CAN RECOVER . . . .
Is this a five-figure case or a seven-figure case?
How should each side approach a plaintiff who has been unable to find suitable employment for several years?
How do you prepare your client for the impact of emotional distress discovery?
When can a discrimination, harassment, or retaliation policy and training actually support a punitive damage claim, and when does it defeat one?
When does the plaintiff's loss of a job obtained after being discriminatorily discharged cut off back pay, and when is back pay still recoverable?
What are the rules on contacting physicians who have examined the plaintiff outside of formal discovery process?
When can a plaintiff "bust" the caps, and when can the caps actually help the plaintiff?
What common timekeeping habits can jeopardize the recovery of thousands in fees?
How can damage issues improve your settlement position?
How can you minimize the tax bite and what can create IRS problems?
Take advantage of the hidden tools for either increasing or minimizing a damages recovery. This innovative, interactive conference will explore both the law and the "how-to" of tackling these and other issues that impact the bottom line in employment cases.
INNOVATIVE PRESENTATION STYLE
An employee's attorney and an employer's attorney will address each topic, with a sitting judge to provide a judicial perspective.
Each topic include five "hot tips" for the employee side and five "hot tips" for the defense.
Checklists will be developed by the faculty and conference attendees during the conference.
Conference attendees will be invited to participate and describe specific damage issues they are facing (or have faced) and their ideas for dealing with the issue, with additional ideas from the faculty and other conference attendees.
Specific decisions or hypothetical cases will be dissected in some instances, with analysis of factual variations to suggest different possible approaches.
Planning Chairs
Connie N. Bertram, Winston & Strawn LLP, Washington, D.C.
Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, D.C.
Michael J. Leech, Hinshaw & Culbertson LLP, Chicago
Rebecca R. Pallmeyer, U.S. District Judge, Northern District of Illinois, Chicago
Faculty
Judges
John M. Facciola, U.S., Magistrate Judge, District of Columbia
Paul M. Grimm, U.S. Magistrate Judge, Baltimore
Susan D. Wigenton, U.S. District Judge, Newark, New Jersey
Practitioners
Kathleen M. McKenna, Proskauer Rose LLP, New York
Paul W. Mollica, Meites, Mulder, Mollica & Glink, Chicago
Robert W. Wood, Wood & Porter, P.C., San Francisco
Experts
Richard J. Lurito, Ph.D., President, RL, Inc., McLean, Virginia
Jerome M. Staller, Ph.D., President, The Center for Forensic Economic Studies, Philadelphia
Christiane Tellefsen, M.D., Assistant Professor, Department of Psychiatry and Behavioral Sciences, The John Hopkins University School of Medicine, Baltimore
Additional faculty to be confirmed
ALI-ABA Staff Attorney: Kevin J. O'Connor, Senior Assistant Director, Office of Courses of Study
Program Schedule
(subject to change)
THURSDAY, FEBRUARY 7, 2008
8:00 a.m. Registration and Continental Breakfast
Webcast Segment A
8:45 a.m. Introductory Remarks
9:00 a.m. Overview of the Program
9:15 a.m. Calculation of Back and Front Pay
• Roles of judge and jury
• What cuts off back pay and what does not?
• What are proper offsets to back pay and front pay?
• When to seek and how to preserve reinstatement as a remedy
• Developing front pay and back pay evidence
10:15 a.m. Mitigation Issues • What are sufficient mitigation and the impact of shifting burdens of proof?
• What persuades juries and what does not?
• Must the plaintiff "lower his/her sights" and seek non-comparable employment?
• The effect of subsequent job performance/ termination
• Can the plaintiff open his/her own business or go back to school?
• Use of litigation holds to plaintiff's counsel to preserve evidence
• Development of mitigation evidence in discovery
• Using experts on mitigation issues
11:15 a.m. Networking Break
11:30 a.m. Valuing Fringe Benefits and Other Elements of Recovery
• How to calculate the value of medical benefits
• Physical injuries and impact of worker's compensation
• Long-term career injury-different from future loss of income?
• Stock options and restricted stock plans
• Pension benefit and 401(k) calculations
• Selecting and working with actuarial and economic damage experts
• Tax impact of recovery
12:30 p.m. Lunch Sponsored by Winston & Strawn LLP and keynote address (not recorded or webcast)
Webcast Segment B
2:00 p.m. Compensatory Damages: The Emotional Distress Battle
• When to plead and not to plead emotional distress
• How to value the damage exposure
• What are hedonic damages and are they recoverable?
• How much is too much in your Circuit?
• The damage caps-how they work and how they affect review of verdicts
• Using stories and specifics to support the emotional distress recovery
• How emotional distress evidence can help the defense on the merits
• How to be prepared to defuse plaintiff's distress case
• Developing evidence regarding emotional distress outside of formal discovery
3:30 p.m. Networking Break
3:45 p.m. The Rule 35 Mental Exams and Psychological Testing
• Is there such a thing as "garden variety" emotional distress?
• Counsel's relationship with the treating therapist
• Selection and management of forensic psychiatrists-and do you want one at all?
• The MMPI battle
• Terms and conditions of a mental exam
• Presenting and cross-examining psychological experts at trial
5:15 p.m. Adjournment for the Day
FRIDAY, FEBRUARY 8, 2008
8:30 a.m. Continental Breakfast
Webcast Segment C
9:00 a.m. Punitive and Liquidated Damages
• Impact of liquidated damage awards on front pay
• The courts' interpretation of Kolstad and impact on discrimination cases
• Proving the requisite state of mind of the proper individual
• What is a sufficient good faith defense to keep punitive damages from the jury?
• Punitive damages in unexpected places (FLSA retaliation)
• The development and use of net worth evidence in punitive damage proceedings
• What appeals to juries and provokes punitive damage awards
10:15 a.m. Networking Break
10:30 a.m. Attorneys' Fees
• Multiple claims and the failure to prevail on all
• Discovery of defense time records
• Effect of disputes among co-counsel and with prior counsel
• Record keeping and fractionalizing entries/block billing
• Timing of ruling on fee application and appeal
11:15 a.m. The Use of Damages Experts
• Daubert and the limits of expert testimony
• Drafting the expert disclosure and report
• Deposition techniques for barring or controlling the expert
• Use of motions in limine to control experts who stray from the report
• Effective cross-examination strategies for expert witnesses
• Using experts to prove failure to mitigate
• Bifurcation of expert discovery
12:30 p.m. Lunch Break (on your own)
Webcast Segment D
2:00 p.m. Using Damage Issues To Secure Favorable Settlements
• Why damages are more important than liability in settlements
• Assembling and presenting effective damage packages
• Educating your opponent on the strengths or weaknesses of the damage case
• Negotiation tools to use when dealing with damage issues
3:00 p.m. Networking Break
3:15 p.m. Ethical Issues
• Ex parte communication with plaintiff's treating doctors
• Misrepresentations of fact during pre-suit investigations
• Maintenance of records supporting fees and costs
• Scope of investigation of emotional distress claims
• The duty to preserve evidence regarding mitigation and damages
4:15 p.m. Tax and Insurance Considerations
• Is Murphy v. IRS history and are emotional distress damages income or not?
• Proper allocations to avoid a visit from the tax man-the "greedy rule"
• Allocations that assist the employer in getting insurance coverage
• When must I send a W-2 and who gets a 1099 form?
5:00 p.m. Adjournment
Total 60-minute hours of instruction: 12.25
