Evidence Issues and Jury Instructions in Employment Cases
Why Attend?
Balanced Perspective
During this two-day, advanced program, comprising 14 hours of instruction, the faculty examines vital evidence and jury instruction issues that arise in employment cases. Registrants are provided practical, experience-based plans for addressing vexing problems confronting employment lawyers before and during trial. All issues are examined in a balanced way by a faculty consisting of judges, law school professors, plaintiff attorneys, and defense lawyers.
Broad Coverage of Jury Instructions
It is often said that a lawyer should start work on an opening and a closing statement the very day a case comes through the door. The same applies to jury instructions. Finding potential model jury instructions acceptable for a particular case can be a difficult proposition. Some courts have model instructions, but most do not. And for those with model instructions, some may not be up to date. At this program, registrants receive pragmatic tips on crafting jury instructions for particular kinds of claims: race, gender, age, sexual harassment, retaliation, and disability.
E-Discovery Focus
The risks of e-discovery sanctions and the need to know how to handle e-discovery in today’s legal world are growing exponentially, especially with the implementation of revisions to the Federal Rules of Civil Procedure, effective December 1, 2006. At this program, judges and practitioners analyze the relationship between e-discovery and evidentiary issues in employment litigation.
The program also includes 1.5 hours on ethics and professional responsibility issues. Time is reserved to address questions presented throughout the course.
Planning Chairs
Kim J. Askew, Hughes & Luce, LLP, Dallas
Connie N. Bertram, Winston & Strawn LLP, Washington, D.C.
Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC, Washington, D.C.
Paul W. Grimm, Chief U.S. Magistrate Judge, Baltimore (also on faculty)
Faculty
Judges
Leonie M. Brinkema, U.S. District Judge, Alexandria, Virginia
Nancy Gertner, U.S. District Judge, Boston
Jacob P. Hart, U.S. Magistrate Judge, Philadelphia
Kathleen M. O’Malley, U.S. District Judge, Cleveland
Rebecca R. Pallmeyer, U.S. District Judge, Chicago
Professors and Litigators
Kevin F. Brady, Connolly Bove Lodge & Hutz LLP, Wilmington, Delaware
Heather C. Bupp-Habuda, Legal Ethics Counsel, District of Columbia Bar, Washington, D.C.
Miriam F. Clark, Ritz & Clark LLP, New York
M. Carter DeLorme, Winston & Strawn LLP, Washington, D.C.
Bernard J. DiMuro, DiMuroGinsberg PC, Alexandria, Virginia
Michael S. Frisch, Adjunct Professor and Ethics Counsel, Georgetown University Law Center, Washington, D.C.
Rachel Geman, Lieff Cabraser Heimann & Bernstein, LLP, New York
Michael H. Gottesman, Professor of Law, Georgetown University Law Center, Washington, D.C.
Brian S. Harvey, Baker & Hostetler LLP, Washington, D.C.
Kristina James, McNamara & Martinez LLP, Denver
Barbara L. Johnson, Paul, Hastings, Janofsky & Walker LLP, Washington, D.C.
Ellen C. Kearns, Foley & Lardner LLP, Boston
Deborah P. Kelly, Dickstein Shapiro LLP, Washington, D.C.
Michael J. Leech, Hinshaw & Culbertson LLP, Chicago
Alison B. Marshall, Jones Day, Washington, D.C.
Ellen M. Martin, Patterson Belknap Webb & Tyler LLP, New York
Susan R. Martyn, Stoepler Professor of Law and Values, University of Toledo College of Law, Toledo, Ohio
Kathleen M. McKenna, Proskauer Rose LLP, New York
Lynn McLain, Professor of Law and Dean Joseph Curtis Faculty Fellow, University of Baltimore School of Law, Baltimore
Gary E. Phelan, Outten & Golden LLP, Stamford, Connecticut
Richard T. Seymour, Law Office of Richard T. Seymour, P.L.L.C., Washington, D.C.
Gordon G. Waldron, Senior Trial Attorney, U.S. Equal Employment Opportunity Commission, Chicago
Christine E. Webber, Cohen, Milstein, Hausfeld & Toll, P.L.L.C., Washington, D.C.
ALI-ABA Staff: Thomas M. Hennessey, Assistant Director, Office of Courses of Study
Program Schedule
Thursday, February 8, 2007
- 8:00 a.m. Registration and Continental Breakfast
- 9:00 a.m. Using the Federal Rules of Evidence Effectively to Present Your Claims and Defenses to the Jury — Judge Grimm and Professors Gottesman and McLain
- * Character evidence
- * Authentication of records (including e-mails and other electronic records)
- * Hearsay
- * Opinion and expert testimony
- * Impeachment of witnesses
- 10:30 a.m. Networking Break
- 10:45 a.m. Using the Federal Rules of Evidence (continued)
- 11:45 a.m. Questions and Answers
- 12:00 noon Lunch Break
- 1:30 p.m. Evidence Issues and Jury Instructions in Harassment Cases — Mss. Clark and Kelly; Commentator: Ms. James
- * Admissibility of alleged harassing comments and conduct
- * Privilege and admissibility issues raised by internal and external investigations of harassment claims
- * Admissibility of evidence outside of the scope of the original investigation
- * Evidence concerning the plaintiff's acquiescence in or consent to harassing conduct
- * Evidence concerning "retaliatory harassment"
- * Admissibility of EEO audits and other prior notice of conduct
- * Admissibility of psychological testimony concerning whether the plaintiff was harassed
- * Plaintiff evidence concerning experts contesting the employer's anti-harassment policies and remedial measures
- 2:30 p.m. Questions and Answers
- 2:45 p.m. Networking Break
- 3:00 p.m. Evidence Issues and Jury Instructions in Discrimination Actions — Mss. McKenna and Webber
- * Potential hearsay exceptions for investigations of wrongdoing by the plaintiff
- * Evidentiary limitations potentially imposed by the "legitimate business decision" and "good faith investigation" pretext standards
- * New "twists" in classic pretext evidence, including comparator evidence, stray remarks, and "me too" and "not me" evidence
- * Impact of findings in other proceedings, such as agency determinations, unemployment compensation hearings, and private and union arbitrations
- * Evidence concerning stereotyping
- * Impact of affirmative action plans and hiring goals
- * Statistical evidence
- * Additional issues raised in class and collective actions
- * Jury instructions in mixed motive actions
- * Jury instructions concerning prima facie case and protected activity
- 4:00 p.m. Questions and Answers
- 4:15 p.m. Evidence Issues and Jury Instructions in Retaliation Actions — Ms. Johnson and Mr. Waldron; Commentator: Ms. James
- * Evidence concerning plaintiff's protected activity
- * Proof of nexus through temporal proximity
- * Retaliatory harassment
- * Constructive discharge and constructive resignation
- * Special issues that arise in proving pretext in retaliation actions
- * Impact of Burlington Northern on jury instructions
- 5:15 p.m. Questions and Answers
- 5:30 p.m. Adjournment for the Day
Friday, February 9, 2007
- 8:30 a.m. Continental Breakfast
- 9:00 a.m. Evidence Issues in Motions for Summary Judgment — Messrs. DeLorme and Seymour
- * Rule 56(c) evidence standard
- * Strategies and limitations for presenting evidence in support of initial motion for summary judgment
- * The role of the parties' "statements of undisputed facts"
- * Rule 56(f) motions for discovery
- * Use and misuse of declarations to "clarify" and supplement deposition testimony
- * Impact of failure to disclose witness and evidence in discovery
- * Challenging evidence presented on summary judgment
- 10:00 a.m. Questions and Answers
- 10:15 a.m. Networking Break
- 10:30 a.m. Evidence Issues and Jury Instructions Relating to Damage Claims in Employment Cases — Mr. Leech and Ms. Marshall
- * Use of psychological experts to prove damages and causation
- * Other evidence relevant to emotional damage claims
- * The role of economic experts
- * Mitigation of damages
- * Loss of enjoyment of life
- * Use of vocational rehabilitation experts by the defense
- * Proof of tax bump relief
- * Showing necessary to support and defend punitive damages claims
- * Bifurcation of liability and damages issues
- * Jury instructions concerning damages
- 11:30 a.m. Questions and Answers
- 11:45 a.m. Box Lunch — Sponsored by Winston & Strawn LLP
- 12:00 noon Legal Ethics — Judge Grimm, moderator; Professors Frisch and Martyn; Ms. Bupp-Habuda; and Messrs. DiMuro and Harvey
- * Ex parte access to current and former manaagers and staff
- * Electronic investigation and communication
- * Improper acquisition and inadvertent disclosure of information and documents
- * Judicial enforcement of professionalism and civility codes
- * Ethics issues associated with discovery practice
- 1:30 p.m. Networking Break
- 1:45 p.m. Evidence Issues and Jury Instructions in ADA and FMLA Litigation — Ms. Martin and Mr. Phelan; Commentator: Ms. James
- * Admissibility of medical evidence concerning serious medical condition beyond information on FMLA forms
- * Proof of "incapacity" in FMLA actions
- * Use of vocational rehabilitation experts
- * Evidence relevant to establishing FMLA discrimination and retaliation
- * Evidence of claimed disabling condition and its impact on major life activities in ADA actions
- * Evidence relevant to establishing "regarded as" claim for ADA
- * Jury instructions concerning:
- o Defining a disability and serious medical condition
- o Defining a reasonable accommodation
- o Defining major life activities
- o Defining an "incapacity"
- o Standards of proof for claims for violations of statute and for disability and retaliation claims
- 2:45 p.m. Evidence and Jury Instructions in FLSA Actions — Mss. Geman and Kearns; Commentator: Ms. James
- * Evidence relevant to determination of exemptions
- * Evidence concerning overtime hours worked
- * Evidence concerning knowledge or notice to employer
- * Evidence relating to the employee's claimed damages
- * Use of sampling to establish damages
- * Additional issues raised by collective actions
- * Jury instructions concerning (1) exemptions, (2) hours worked, and (3) calculation of damages
- 3:45 p.m. Questions and Answers
- 4:00 p.m. Networking Break
- 4:15 p.m. Electronic Evidence: The Problems, the Law, and Available Solutions — Judge Grimm and Mr. Brady
- * The new Federal Rules of Civil Procedure
- * Preservation obligations of plaintiffs and defendants
- * Sanctions for failure to preserve evidence
- * "Quick peek and clawback" agreements
- * Issues unique to employment litigation
- 5:15 p.m. Questions and Answers
- 5:30 p.m. Adjournment
Total 60-minute hours of instruction: 14, including 1.5 hours of ethics and professional responsibility
Here's what registrants have said about this course:
This was the best, most focused and most valuable employment law course that I have ever attended – that includes some 100-150 or more that I have spoken at or attended in the last 30 years. What was most impressive was the detailed assessment and analysis of the different federal evidence rules and how they relate to each other. Judge Grimm is a gem, his incisive and numerous explanations of difficult subject matter made the process all the more delightful as the hours wore on.
Having the judges participate is the key to this program’s success. Judge Grimm is an awesome presenter. The expertise and real-world information provided by the judges are incredibly valuable.
All judges were excellent and their presence is a unique, vital component of this class.
Well done. Makes me proud to be in the profession with you.
Subject matter choices were right on, and the faculty choices were pegged to the subject matter extremely well.
This has been an excellent, most enjoyable, fast paced program that has educated, reminded and tweaked my interest in evidence and the discovery of evidence issues. Thank you!
I learned a lot and will use some of the ideas suggested. You have a difficult task trying to improve on this course. Thanks!
In 27 years of practice, this was the most relevant, insightful, well prepared and well presented seminar on any given subject I have attended. All the presenters had great grasp of the law and interplayed it well with their experience. It was particularly helpful to have practicing attorneys on the same panel as judges to get every perspective. The seminar was both instructive and entertaining, a wonderful balance. Taking this time away from the office was most rewarding.
