6 TransiTional and non-TransiTional MClE CrEdiTs: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 6 Transitional and Non-Transitional credit hours: 2 Ethics; 2 Skills; 2 PP.

This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 6 hours of total CLE credit. Of these, 2 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law.

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How to Handle an employment discrimination case

Prepared in connection with a Continuing legal Education course presented at new York County lawyers’ association, 14 Vesey street, new York, nY

scheduled for May 16, 2011 and May 23, 2011.

P r o g r A m C h A I r :

louis Pechman, Berke-Weiss & Pechman LLP

F A C u L t Y :

scott T. Baken, Jackson Lewis LLPanne l. Clark, Vladeck, Waldman, Elias & Engelhard, P.C.

alfred G. Feliu, Vandenberg & Feliu, LLPJerrold F. Goldberg, Greenberg Traurig, LLP

susan ritz, Ritz Clark & Ben-Asher LLPdavid C. singer, Dorsey & Whitney LLP

Information Regarding CLE Credits and Certification How to Handle an Employment Discrimination Case

Day Two May 23, 2011, 6:00PM to 9:00PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time

you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

How to Handle an Employment Discrimination Case

Day Two Monday, May 23, 2011

6:00 PM – 9:00 PM

Table of Contents Section Mediation in Employment Discrimination Cases 1

The Duty of Good Faith in Mediation by David C. Singer and Cecilie Howard The Duty of Good Faith in Mediation Proceedings: Part II by David C. Singer and Cecilie Howard

Pre-Trial Motions and Trial Strategy 2

Zakre v. Norddeutsche Landesbank Girozentrale, SDNY 2007: Of Counsel, Anne Clark and Karen Cacace

Plaintiff’s Memorandum of Law in Response to Defendant’s Motion in Limine Lost Wages and Benefits Chart

Excerpt from a Post Trial Motion

Excerpt from Second Circuit Brief

Pre-Trial Motions and Trial Strategy from the Defendant’s Perspective 3

Understanding Jurors and Building Effective Trial Presentations by Scott T. Baken, Esq.

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

How to Handle an Employment Discrimination Case

Day Two May 23, 2011

6:00PM – 9:00PM Program Chair: Louis Pechman, Esq. Faculty: David C. Singer, Esq. Anne L. Clark, Esq. Scott T. Baken, Esq.

AGENDA 5:30PM – 6:00PM Registration 6:00PM - 6:10PM Introductions and Announcements 6:10PM – 6:50PM Mediation in Employment Discrimination Cases David C. Singer, Esq. 6:50PM – 7:30PM Pre-Trial Motions and Trial Strategy from the

Plaintiff’s Perspective Anne C. Clark, Esq. 7:30PM – 7:40PM BREAK 7:40PM – 8:20PM Pre-Trial Motions and Trial Strategy from Defendant’s

Perspective Jerrold F. Goldberg, Esq. 8:20PM – 8:50PM Questions and Answers

August 25, 2010

THE DUTY OF GOOD FAITH IN MEDIATION

By: David C. Singer and Cecilie Howard

Mediation is a process generally in which parties engage a neutral third person to help

them reconcile or resolve a problem or dispute. During mediation, positions are presented and

heard, underlying interests are revealed and considered, risks are analyzed and assessed, and

options for resolution are explored. A skilled mediator assists in the process of identifying

issues, pursuing areas of agreement and negotiating solutions to disagreements. Any settlement

is voluntary and cannot be imposed on the parties.

As practitioners are routinely reminded, the duty to act in good faith permeates the law.

Parties commonly agree to mediate a dispute with the expectation that all parties intend to

engage in the mediation process in a good faith effort to resolve the issues between them. Good

faith is integral to the process of mediation – it would be difficult if not impossible for mediation

to succeed without it.

As court-annexed mediation has become common in federal, bankruptcy and state courts,

parties are regularly ordered to engage in mediation of disputes. Under those circumstances,

submitting a dispute to mediation is not voluntary. Nonetheless, the duty to mediate in good

faith remains.

Various New York court rules explicitly confirm the duty to participate in mediation in

good faith. The Local Rules for the United States District Court for the Southern District of New

York provide: “The assigned Judge or Magistrate may determine that a case is appropriate for

mediation and may order that case to mediation with or without the consent of the parties.”

S.D.N.Y., R. 83.12(e). Once a party enters into mediation, “The attorney primarily responsible

for each party’s case shall personally attend the first mediation session and shall be fully

authorized to resolve the matter and prepared to discuss all liability issues, damage issues, and

the party’s settlement position in detail and in good faith.” S.D.N.Y., R. 83.12(j). Similarly, the

Western and Northern Districts of New York require that parties participate in court-ordered

mediations in good faith. W.D.N.Y. ADR Plan, § 5.8(G) (revised Jan. 1, 2008); N.D.N.Y., R.

83.11-5(c).

The Bankruptcy Court for the Southern District of New York also may order parties to

engage in good faith mediation. Bankr. S.D.N.Y. Gen. Order M-390, R. 1.1 (“The Court may

order assignment of a matter to mediation upon its own motion, or upon a motion by any party in

interest or the U.S. Trustee.”). General Order M-390 issued by the Bankruptcy Court for the

Southern District of New York requires: “A representative of each party shall attend the

mediation conference, and must have complete authority to negotiate all disputed amounts and

issues. . . . The mediator shall report any willful failure to attend or participate in good faith in

the mediation process or conference.” Bankr. S.D.N.Y. Gen. Order M-390, R. 3.2. Other

bankruptcy court rules provide mechanisms for reporting a party’s failure to participate in good

faith in the mediation process. Bankr. E.D.N.Y., R. 9019-1(e).

Further, Federal Rule of Civil Procedure 16(f) allows a court to issue sanctions if a party

does not participate in good faith in a pretrial conference. Fed. R. Civ. P. 16(f). However, the

comments to the Federal Rules of Civil Procedure note, in part, that “it is not the purpose of Rule

[16(c)(2)(I)] to impose settlement negotiations on unwilling litigants.” Fed. R. Civ. P., Rules

Advisory Committee Notes (1983).

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State court rules requiring good faith in mediation are less explicit than the federal court

rules. The Commercial Division rules of the New York State courts provide: “At any stage of

the matter, the court may direct or counsel may seek the appointment of an uncompensated

mediator for the purpose of mediating a resolution of all or some of the issues presented in the

litigation.” 22 NYCRR § 202.70(g), R. 3. The Commercial Division rules do not, however,

specify a good faith requirement or make any comment as to how parties must conduct

themselves in mediation. Nor do the general rules for New York State courts contain provisions

regarding mediation or alternative dispute resolution, although parties proceeding in bad faith

during settlement negotiations may find themselves subject to sanctions pursuant to Section 130-

1.1 of the Rules of the Chief Administrator of the New York State Courts, which addresses

“frivolous” conduct. 22 NYCRR § 130-1.1(a).

The New York Rules of Professional Conduct do not include a specific requirement that

attorneys proceed during mediation in good faith. The Rules, however, include the general

requirement that: “A lawyer shall not bring or defend a proceeding, or assert or controvert an

issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” N.Y.

Rules of Professional Conduct, R. 3.1(a).

Even where rules explicitly require good faith, they do not expressly define good faith in

the context of mediation. Black’s Law Dictionary provides a general definition of good faith:

“A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty or

obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or

business, or (4) absence of intent to defraud or to seek unconscionable advantage.”

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Good faith as applied to mediation has been analyzed in case law – generally in the

context of an application for the imposition of sanctions against a party. Parties have been

sanctioned for objective failures to participate in mediations in good faith. Implicit in the

concept of good faith is that parties will participate in a mediation in accordance with the

directives contained in a Court’s order. See Nick v. Morgan’s Foods, Inc., 99 F. Supp. 2d 1056,

1063 (E.D. Mo. 2000), aff’d, 270 F.3d 590, 596 (8th Cir. 2001). The Second Circuit has upheld

sanctions where the principal of a party failed to appear for the mediation as ordered, since it

“impaired the usefulness of the mediation conference.” See Negron v. Woodhull Hosp., No. 05

Civ. 4147, 173 Fed. Appx. 77, 79, 2006 WL 759806, at *1 (2d Cir. 2006). Failure to submit a

court-ordered mediation statement has led to sanctions. See Nick v. Morgan’s Foods, Inc., 270

F. 3d 590, 596 (8th Cir. 2001). And a court may sanction a party that does not send a

representative to the mediation who has the ability to meaningfully participate and make

decisions, including the authority to reconsider that party’s position. Id.

One court has found that certain defendants failed to mediate in good faith where they

moved for summary judgment the day before the scheduled mediation and then offered only

$1,000 in settlement at the mediation, an offer they knew was unlikely to settle the case. See

Fisher v. SmithKline Beecham Corp., No. 07 Civ. 0347A(F), 2008 WL 4501860, at *5

(W.D.N.Y. Sept. 29, 2008). In Fisher, the court criticized the defendants for wasting time by

failing to make the motion in time for the other parties to seek an adjournment of the mediation

session. Id.

New York state courts have not ruled on whether mediation proceedings carry a good

faith requirement, likely because no state court rule or ethics rule specifically requires good faith

in the mediation context. However, applying 22 NYCRR Section 130-1.1, the Suffolk County

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Supreme Court sanctioned a sub-prime lender which appeared at a settlement conference with

“no good faith intention whatsoever of resolving [the] matter in any manner other than a

complete and forcible devolution of title.” IndyMac Bank F.S.B. v. Yano-Horoski, 26 Misc. 3d

717, 718, 890 N.Y.S.2d 313, 315 (Sup. Ct., Suffolk Co. 2009). In what became a total loss for

the lender, the court also nullified both the mortgage itself and the subsequently-issued

adjustable rate note, and dismissed the foreclosure action. Id., 26 Misc. 3d at 725-26, 890 N.Y.S.

2d at 320. Thus, practitioners should be aware that a New York state court may view a lack of

good faith – including in settlement negotiations and potentially in mediations – as sanctionable

conduct.

Recently, in the bankruptcy case In Re A.T. Reynolds & Sons, the issue of good faith

arose in the context of a court-mandated mediation and a subsequent sanctions application. 424

B.R. 76, 78 (Bankr. S.D.N.Y. 2010). The court awarded sanctions based on various factors. The

court found that the sanctioned party had not sent a sufficiently senior representative or counsel

to the mediation who had full settlement authority to settle the matter or meaningfully participate

in the mediation. The court found that such conduct was “tantamount to not attending” the

mediation. In re A.T. Reynolds & Sons, 424 B.R. at 89. In the court’s view, the lack of

settlement authority was evidenced by the fact that the representative could only settle for up to a

“predetermined cash amount” and had to make a telephone call in order to make an “ultimate

offer of settlement.” Id. In the court’s view, having someone with full authority available by

telephone did not satisfy the requirement that a party with full settlement authority attend the

mediation. Id.

The court also took issue with the party’s conduct prior to and during the mediation. Id.

at 91-92. The court noted that, prior to the mediation, the party had demanded a list of the issues

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that would be the subject of the mediation, requested the identities of the other parties’

representatives that would be attending the mediation, resisted providing a mediation statement,

and insisted that it would only be prepared to address the issues that the debtor had expressly

identified for mediation. Id. The court then found that, during the mediation, the sanctioned

party simply adhered to and repeated predetermined party positions, interrupted the other parties

and refused to let the discussions proceed. Id. at 93. Since the process of mediation necessarily

entails discussion, risk analysis and consideration of the other parties’ arguments, the court

reasoned, “attendance at a mediation without participation in the discussion and risk analysis that

are fundamental practices in mediation constitutes failure to participate in good faith.” Id. at 90.

The sanctions decision in A.T. Reynolds case is currently on appeal.

In sum, there are certain basic indicia of good faith that are easy to identify, such as

appearing for the mediation, providing a required mediation statement, having party

representatives and counsel participate in the mediation who have the ability to discuss the issues

and make decisions regarding settlement, and otherwise complying with the specific directives

contained in the applicable court rules or court order. In some respects, though, good faith can

be an intangible, abstract quality that is difficult to define.

* * *

David C. Singer is a partner and Cecilie Howard is an associate at Dorsey & Whitney LLP

April 29, 2011

The Duty of Good Faith in Mediation Proceedings: Part II

By: David C. Singer Cecilie Howard

Parties enter into mediation so that they can have a neutral third party help them resolve a

problem or dispute. In a successful mediation, parties typically present their respective positions,

listen to the other side’s position, analyze and assess their risks, and weigh the options for

resolution. Mediation can reveal a party’s underlying interests and lead to creative solutions.

A mediator assists the parties to identify issues and helps move the parties to resolution.

However, a mediator may not force parties to settle a dispute -- settlement is always voluntary.

Contracts often require mediation as a method for resolving conflicts arising out of such

contracts. Parties may also agree to mediate, or a court may order them to engage in mediation,

after a dispute has already arisen. In each of these circumstances, parties have a duty to mediate

in good faith. Indeed, good faith is indispensable in the mediation process -- without good faith,

mediation would be unlikely to succeed.

Many courts have adopted court-annexed mediation, and judges are with increasing

frequency directing litigants to mediate their disputes before continuing with litigation. In such

circumstances, the qualifier “good faith” regarding a party’s participation in mediation can

become murky. The line between failing to mediate in good faith as opposed to adhering to what

the party genuinely believes to be in its best interests can be difficult to draw.

We discussed in an earlier article how some courts have addressed the duty to act in good

faith in the mediation context. Issues relating to good faith generally arise in the context of one

party moving for sanctions, claiming that the other party did not participate in mediation in good

faith. And parties have been sanctioned for failure to participate in good faith.

4830-6517-4537\1

Sanctions have been imposed based on relatively objective failures by a party, often in

violation of a court order or rule. The Second Circuit has upheld sanctions imposed by the

district court based on a party representative’s failure to attend a mediation as ordered, since such

failure “impaired the usefulness of the mediation conference.” See Negron v. Woodhull Hosp.,

No. 05 Civ. 4147, 173 Fed. Appx. 77, 79, 2006 WL 759806, at *1 (2d Cir. 2006). Another New

York district court found that certain parties failed to mediate in good faith when they moved for

summary judgment the day before the scheduled mediation and made an unreasonably low

settlement offer at the mediation. See Fisher v. SmithKline Beecham Corp., No. 07 Civ.

0347A(F), 2008 WL 4501860, at *5 (W.D.N.Y. Sept. 29, 2008). The Eighth Circuit has upheld

sanctions against a party for failure to submit a court-ordered pre-mediation statement and failure

to send a representative to the mediation with settlement authority and the ability to meaningfully

participate and make strategic decisions at the mediation. Nick v. Morgan’s Foods, Inc., 270 F.

3d 590, 596 (8th Cir. 2001); see also Francis v. Women’s Obstetrics & Gynecology Grp., P.C.

144 F.R.D. 646, 648 (W.D.N.Y. 1992).

Recently, a Bankruptcy Court judge in the Southern District of New York sanctioned a

party for failing to participate in good faith in a court-ordered mediation. See In re A.T. Reynolds

& Sons, 424 B.R. 76 (Bankr. S.D.N.Y. 2010). The court in A.T. Reynolds criticized the party’s

conduct prior to the mediation, finding that the party asked for a list of the issues that would be

the subject of the mediation, requested the identities of the representatives of the other parties

that would be attending the mediation, resisted providing a mediation statement, and insisted that

it would only be prepared to address the issues that the debtor had expressly identified for

mediation. See id. at 91-92.

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The Bankruptcy Court also criticized the party’s conduct during the mediation. First, the

court found that the sanctioned party did not send someone to the mediation who was senior

enough and had full settlement authority or the ability to meaningfully participate in the

mediation. In the court’s view, the party representative had authority to settle for up to a

“predetermined cash amount” and had to make a telephone call in order to make an “ultimate

offer of settlement.” Id. at 90. Having someone with full authority available by telephone was

not viewed as an acceptable substitute for having a representative with full settlement authority

attend the mediation. Id. at 90. The Bankruptcy Court found that such conduct was “tantamount

to not attending the mediation.” Id. at 89.

Second, the court found that the party initially took and thereafter adhered to a particular

position, interrupted the opposing side’s recitation of its position, and generally refused to let the

discussions proceed. Id. at 93. The Bankruptcy Court explained that the mediation process

requires discussion, risk analysis, and consideration of other parties’ arguments, none of which

the party did. Id. at 90. The Bankruptcy Court reasoned that “attendance at a mediation without

participation in the discussion and risk analysis that are fundamental practices in mediation

constitutes failure to participate in good faith.” Id. at 90.

On appeal, the District Court for the Southern District of New York recently reversed the

order imposing sanctions and holding the party in contempt. See In re A.T. Reynolds & Sons.,

Inc. d/b/a Leisure Time Spring Water, No. 10-cv-02917 (WHP), Memorandum & Order

(S.D.N.Y. Mar. 18, 2011) (“A.T. Reynolds Decision”). In doing so, the District Court made

several important points about the nature of mediation.

First, the District Court held that the good faith of a party to a mediation should be

discerned by relatively objective indicia, such as attendance at the mediation, exchanging pre-

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mediation memoranda, and having a representative with sufficient settlement authority attend the

mediation.

The District Court was guided by considerations of litigant autonomy. Although

mediation is a process designed to provide an environment for settlement, encourage parties to

engage in risk analysis and readjust their positions, settlement cannot be mandatory and a court

cannot force a settlement or “invoke ‘pressure tactics’ designed to coerce a settlement.” Id. at

12. A party is fully within its rights to refuse to make a settlement offer, and instead adopt a “no

pay” position. A refusal to settle is not indicative of bad faith. Id. at 12-14. It was also not bad

faith for a party to determine that it had no liability and insist on being persuaded otherwise by

the other side. “Certain disputes are not amenable to mediation, and it should not be a surprise

when attempts to mediate them quickly deteriorate.” Id. at 13. The court pointed out that

attempting to determine whether a party has engaged in the type of risk analysis associated with

mediation is difficult if not impossible -- a party may have engaged in meaningful risk analysis

and determined that the risk was zero. Id.

The District Court was also troubled about the threat to the confidentiality of the

mediation process. Confidentiality is a hallmark of mediation and enables parties to freely

discuss their differences in an effort to reach an agreement. Beaches of confidentiality are

appropriate only in very limited contexts.

In the context of a sanctions motion, attempting to determine a party’s subjective good

faith requires a broad inquiry into the facts that could likely include the disclosure of confidential

communications during the mediation. While the Bankruptcy Court had instructed the parties to

speak about the mediation in “general terms,” certain details regarding the nature of the

discussions and their underlying substance were discernable. The District Court pointed out that

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certain lines of inquiry “imperil[ed] the confidentiality of the mediation.” Id. at 13-14.

Therefore, the court concluded that confidentiality considerations can prevent a court from

inquiring into the level of a party’s participation, including the extent to which a party discussed

the issues, listened to the other side and engaged in risk analysis. Id.

Finally, the District Court held that a party is not required to send a representative to a

mediation who has authority to settle the matter in any manner that may present itself, including

for a monetary amount greater than the amount in controversy, or who is prepared to discuss

every possible legal theory. Indeed, few corporate representatives have that breadth of authority.

Rather, a party must send a representative with authority to settle up to the anticipated amount in

controversy and who can discuss knowledgeably the issues reasonably expected to arise during

the mediation. Id. at 15-16. The District Court in A.T. Reynolds highlighted the fact that parties

must take mediation seriously, but are not required to go to extreme lengths, to participate in

good faith. The decision provides parties with relatively objective and achievable criteria for

complying with good faith obligations in mediation and seeks to preserve the confidential nature

of mediation. The decision can provide a guide to parties participating in mediation, as well to

mediators.

* * *

David C. Singer is a partner in the Litigation Department of Dorsey & Whitney LLP. Cecilie Howard is an associate in that Department. Mr. Singer is also an arbitrator and a mediator, and handles disputes involving business contracts, executive employment agreements and other business and commercial matters.

Copyright 2011, Jackson Lewis LLP

UNDERSTANDING JURORS AND BUILDING EFFECTIVE TRIAL

PRESENTATIONS

SCOTT T. BAKEN

JACKSON LEWIS LLP

I. INTRODUCTION

Although juries have a great deal of discretion in awarding damages at the end of

a trial, courts routinely instruct juries that damage awards must be motivated by a reasoned

assessment of the evidence presented at trial rather than by passion or prejudice.

Notwithstanding a court’s instructions to the contrary, large damage awards often are based on

factors beyond the evidence presented at trial. Every year companies are forced to spend large

sums of money on post-trial motions and appeals to overturn or dramatically reduce substantial

verdicts. Choosing appropriate witnesses to testify at trial, selecting a favorable jury and

understating the reasons behind excessive verdicts are effective tools at your disposal to combat

rogue juries. Trial lawyers can also manage the uncertainties inherent in relying on juries to

resolve disputes between embattled litigants by identifying compelling trial themes and using

those themes as the foundation for building their trial presentations from the penning of their pre-

trial order to the crescendo of their closing argument.

II. SELECTING TRIAL WITNESSES

A. Witness Selection

The first step in defending any employment discrimination case is to meet with all

potential company witnesses to determine the basis for the challenged employment decision.

Based on the facts acquired at these meetings, the next step is to develop a theme for the defense

of the case and to articulate each element that must be proved to prevail. Trial witnesses can

then be selected based on their ability to testify regarding each of the identified elements.

2

With these key elements identified, trial counsel should adhere to the adage of

―getting more from less‖ by presenting the defense’s case through as few witnesses as possible.

This will help prevent the jury from getting bored, and will reduce the possibility of witnesses

giving inconsistent testimony. Calling only a few witnesses also will avoid giving the jury the

impression that the defense is trying to bury the plaintiff or obfuscate the relevant facts. On the

other hand, the defense should call enough witnesses to explain the defendant’s point of view on

salient issues to the jury. Failure to call a witness who possesses personal knowledge of relevant

information can create the impression that the witness is being withheld because his or her

testimony would be unfavorable to the defense. Defense counsel should also capitalize on

opportunities to establish facts favorable to the defendant’s case through the cross-examination

of the plaintiff and the witnesses called by the plaintiff.

In making the final decision as to which witnesses to call, defense counsel should

select those who will appear most ―likable‖ to the jury. The jury will have a greater tendency to

pay attention to and sympathize with those witnesses with whom they can identify. To that end,

counsel should consider using human resources professionals with personal knowledge of

relevant facts as witnesses rather than operations or line employees because human resources

professionals tend to be more sensitive to the issues that will be important to the jury.

When the defendant is a large company, it makes sense to call a relatively senior

official with personal knowledge of relevant facts, if there is one, who can create a favorable or

sympathetic impression in the minds of the jury. This should help dispel the anonymous,

monolithic, ―deep pockets‖ image created by plaintiffs seeking big recoveries.

The demographic background of the witnesses chosen also may have an impact

on the jury. In age discrimination cases, for example, testimony that the employer treats older

3

employees fairly may be more effective if it is presented by an older, long-term employee rather

than a younger employee with less service to the company. Similarly, in other discrimination

cases, witnesses who are in the same protected group as the plaintiff can persuasively explain

that the plaintiff was not singled out for disparate treatment. Matching personal characteristics,

however, should never be used as a substitute for conveying reliable information. It is always

preferable to call witnesses who possess personal knowledge of relevant events because the

information they impart will be deemed more reliable than speculative or conclusory testimony

offered by witnesses who lack personal knowledge.

B. Witness Preparation

In preparing the company witnesses, make sure they understand the defense’s trial

theme or themes. This should help guide them through both direct and cross-examination.

Defense counsel should spend time preparing witnesses by practicing both direct and cross-

examination with them several times. This is especially important whenever the defense believes

the plaintiff may call one or more defense witnesses as an adverse or ―hostile witnesses‖ during

the presentation of the plaintiff’s case. However, defense counsel should refrain from over-

preparing witnesses to the point that they testify as if they are reading from a memorized script.

C. Questioning Witnesses

When questioning a company decision-maker on the stand, defense counsel

should make every effort to portray the witness as a fair person. This should create sympathy in

the minds of the jurors for the individuals who are associated with the corporate defendant.

Similarly, during the direct examination of key corporate witnesses, defense counsel should

consider occasionally addressing them by their first names. This tends to personalize both the

witnesses and the company.

4

If the judge tends to enforce the time-honored rule of limiting cross-examination

to the scope of direct-examination, defense counsel should carefully limit the company

witnesses’ direct examinations to avoid cross-examination which may evoke damaging

testimony. If the judge has allowed a more expansive scope of cross-examination and another

company witness or a plaintiff's witness can provide helpful testimony, defense counsel should

avoid calling a potentially damaging witness.

D. Medical And Physical Experts

In deciding whether to call a mental health expert as a defense witness, defense

counsel should consider whether calling that expert would draw unnecessary attention to the

plaintiff's purported emotional injuries. Should defense counsel decide to call a mental health

expert, a psychiatrist or psychologist who will be able to communicate complex concepts in lay

terms should be selected. The testimony will be useless if the jury cannot understand it. A

mental health expert called by the defense can be used to offer an alternative to the plaintiff's

evidence regarding the causation of the plaintiff's emotional distress. One way in which this can

be accomplished is by having the expert identify other stressors in the plaintiff’s life which

predated and post-dated the adverse employment decisions being litigated. Psychiatrists can also

raise causation issues by attributing the plaintiff’s emotional upset to injuries or illness the

plaintiff has sustained and/or to side effects resulting from medications the plaintiff has taken.

The plaintiff also may call a physician to testify about the physical effects of the

plaintiff's emotional distress. Defense counsel may want to call the plaintiff’s physician as an

adverse witness if the physician’s treatment notes and/or deposition testimony have confirmed

that the plaintiff's physical problems are unrelated to the emotional suffering purportedly caused

5

by the defendant. Defense counsel can also use the physician’s treatment notes to confirm

admissions made by the plaintiff during counseling sessions.

E. Economic Experts

The plaintiff may call an accountant or labor economist to testify about the

plaintiff's past and future economic losses. On cross-examination, defense counsel should

examine the witnesses’ expert report and related work papers for simple mathematical errors or

erroneous salary or benefits data. If the expert admits these mistakes on the stand, the credibility

of his or her analysis will be severely damaged in the minds of the jurors. Defense counsel

should also attempt to pin the plaintiff’s expert down as to any limitations which should be

imposed on the amount of the plaintiff’s potential damages for lost wages and benefits based on

the speed, success and/or failure of the plaintiff’s efforts to mitigate his or her alleged damages

by making reasonable efforts to obtain comparable alternative employment.

Defense counsel also should challenge the economic expert’s damage calculations

based on the plaintiff's life expectancy, health and/or worklife expectancy. Defense counsel

should force the plaintiff's expert to explain the discount rate for calculating economic losses and

why the low rate proposed by the plaintiff is not practical. If the plaintiff is seeking an award of

front pay, defense counsel should have the plaintiff's expert acknowledge the windfall the

plaintiff will receive the plaintiff finds another job immediately after collecting a judgment.

In addition to eliciting helpful testimony from the plaintiff’s economic expert,

defense counsel may be able to undermine the efficacy of the plaintiff’s expert. For example,

defense counsel can expose the expert’s bias or interest in the litigation by establishing that the

expert is being paid for his or her testimony. However, this may be dangerous if the plaintiff's

expert appears to be sincere. The jury may be offended by the inference that the expert’s

6

testimony has been purchased. Defense counsel also should explore the extent of the expert’s

knowledge about the facts of the case. If the expert has either ignored relevant information or

does not possess all of the relevant information, defense counsel can challenge the expert’s

conclusions.

Defense counsel should consider whether calling an expert economist for the

defense would draw unnecessary attention to the plaintiff’s claimed losses. It may be dangerous,

however, to refrain from giving the jury an alternative measure of damages. If the employer

loses on liability and has not responded to the plaintiff's damage claims, the jury may believe it

has no choice but to grant the amount of damages requested by the plaintiff’s expert. The

defense’s alternative damage theory may also provide additional points for appeal. When

possible and practical, defense counsel should consider asking the judge to bifurcate the issues of

liability and damages for trial.

If defense counsel decides to use an economic expert at trial, care should be taken

to select an expert who is able to use simplistic analogies to present complex statistical concepts

and economic models to the jury. In addition to being technically competent, the economic

expert should be an appealing, personable witness. An expert economist called by the defense

should be able to discredit the assumptions on which the plaintiff’s economist has based his or

her conclusions, and to present the defense’s alternative damage assessment for the jury to

consider. The defendant’s economic expert can also be questioned on the plaintiff’s mitigation

efforts. It is often effective to have an economic expert review newspaper and on-line

employment advertisements to identify possible employment opportunities the plaintiff could

have pursued following the termination of his or her employment.

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F. Employment Experts

The plaintiff may call a recruiter or ―headhunter‖ to testify that the plaintiff,

because of age, job specialization and/or geographical limitation, has little hope of obtaining

substantially-equivalent employment. To combat this potentially damaging testimony, the

defense can call its own recruiter as an employment expert. The defendant’s employment expert

can testify that a person with the plaintiff's qualifications normally would be expected to find

comparable employment within a reasonable period of time after being discharged if he or she

engaged in a diligent job search. The defense’s recruiter also can testify as to his or her

experience in finding jobs for people with the plaintiff's qualifications, and the recruiter can

evaluate whether the plaintiff has conducted a proper and thorough job search. The recruiter also

can confirm that most employers with whom the recruiter works only give neutral employment

references, and this common practice should not prohibit or impede the plaintiff from finding

another job.

III. EFFECTIVE USE OF EXHIBITS AND DEMONSTRATIVE EXHIBITS AT

TRIAL

A. Traditional Use Of Exhibits

In order to keep the jury interested and involved, it is preferable to avoid

inundating them with unnecessary, cumulative or duplicative trial exhibits. Again, the concept

of obtaining more from less is applicable. Typical exhibits in employment cases include:

performance evaluations of and job descriptions for the plaintiff and the plaintiff's comparators;

applicable personnel policies (especially if they were followed in the decision-making process);

documents showing the company’s economic instability in cases involving corporate

reorganizations, layoffs and/or economically-motivated terminations; employment

8

advertisements; and disciplinary warnings. Any of these documents can be enlarged to

emphasize their importance. If there is any question regarding the admissibility of key exhibits,

counsel should obtain a ruling on their admissibility from the court prior to using them in the

examination of witnesses.

Defense counsel should present sufficient explanatory testimony on each exhibit

so the jury will understand what they are reviewing, both during the trial and while deliberating.

Exhibits should be pre-marked and organized in three ring binders for ease of reference by the

judge, witnesses, jury and counsel. If possible, avoid using unnecessarily complicated exhibits

or exhibits which are difficult to read. Counsel should have any charts which are used as

demonstrative evidence admitted as exhibits so that photocopies of the charts can be provided to

the jury when they retire to deliberate.

Because jurors tend to pay more attention to visual aids than to oral testimony,

charts filled out in front of the jury as witnesses testify can be extremely persuasive. Defense

counsel should consider using a chart or other visual aide detailing the significant points of

impeachment of the plaintiff’s (or any of the plaintiff's witnesses’) trial testimony.

Demonstrative evidence also is especially useful when introducing evidence on monetary

damages. To increase the likelihood that the jury will understand and remember these numbers,

they should always be contained in a chart and/or an exhibit which the jury can review during the

trial and during deliberations.

B. Technological Advances

The latest legal technology products such as animations and courtroom

presentation systems can be very alluring to lawyers and very persuasive to jurors. The critical

point, however, is not whether these methodologies and technologies are interesting or

9

impressive, but whether they are consistent with the defense strategy and will be persuasive to

the jury. An expensive, ill-planned use of technology may result in an unfavorable result at trial.

As a result, defense counsel should consider the availability, cost and potential impact of

technological alternatives to supplementing the traditional methods of introducing and reviewing

evidence at trial.

Traditionally, in document-intensive cases, trial counsel may have provided

exhibit books to the jurors, presented foam core ―blow-ups,‖ utilized an overhead projector to

project the documents on a large screen, or shown the documents on a TV monitor by either

storing the documents on a laser disc or using an ―Elmo‖ to capture a video image of the

document. Each of these options has shortfalls, either technically, organizationally, visually or

financially. New technology gives today’s trial lawyers the ability to manage large quantities of

documents at trial and through discovery.

Currently, electronic evidence presentation systems are being used with

increasing frequency. These systems allow for large quantities of documents, and even graphic

displays, to be stored either on a hard drive or CD-ROM drive. Similar to slide shows, counsel

can change images during an argument or an examination through the use of a remote control

device. Certain features of these systems make them attractive and persuasive to juries, such as

the ability to isolate sections of a document and to enlarge the text for focus and readability.

Additionally, electronic evidence presentation systems frequently permit the speaker or examiner

to write directly on the screen for special emphasis. This is similar to the technology routinely

used during sports presentations on network and cable television stations.

Equally important is the ability of electronic evidence presentation systems to

search and retrieve thousands of graphics and documents. These systems allow trial counsel to

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scan thousands of documents, display the particular page or pages which require focus, blow up

the text in question and, if necessary, draw a line or a circle in red around an especially damaging

phrase. This access and annotation can be achieved in seconds in front of a jury.

If the issues in the case and the financial ability of the client permit, other types of

visual information lend themselves to display on a TV monitor, such as videotaped depositions,

videotaped instructional presentations, day-in-the-life tapes, and real-time videos of work-related

incidents. However, counsel should not lose sight of the ultimate goal — communicating and

persuading the jury. Defense counsel must remember it is the message, not the medium, that

wins at trial. In many cases, a combination of media, foam core boards, timelines and

chronologies can be used in conjunction with more sophisticated technologies toward the

achievement of the ultimate goal.

IV. JURY SELECTION

Jury selection in employment cases is a crucial stage of the trial which requires

careful preparation beginning well in advance. The ultimate objective of voir dire should be to

identify and select jurors who meet a ―most favorable‖ juror profile consistent with the defense

theme or themes of the case and to eliminate prospective jurors who meet the ―least favorable‖

profile.

A. Purposes Of Voir Dire

Psychologists have confirmed that people remember best what they hear first and

last. These principles of primacy and recency guide not only the opening statement, but also voir

dire in jurisdictions where counsel has the first opportunity to address the jurors.

In jurisdictions which permit attorneys to conduct voir dire, the goals and

purposes of questioning prospective jurors are several: (1) to discover adverse bias and

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prejudice; (2) to learn the background of the jurors; (3) to impart information and develop the

theme of the case; and (4) to establish rapport and credibility.

Voir dire in an employment case must address each of these goals, but with the

special recognition that most prospective jurors are employees themselves. Therefore, each will

have his or her own unique background, experience, and attitudes towards work and employers.

These facts will bear on the prospective jurors’ feelings about the case and ultimately their

verdict. Unlike most cases that jurors are called upon to decide, employment disputes almost

always involve issues that every juror or a close friend or family member has faced: termination,

failure to receive a raise or promotion, receipt of a negative performance evaluation, unhappiness

with a supervisor, job frustration, etc. In addition, many prospective jurors in discrimination

cases fall within the same protected class as the plaintiff. Because employers rarely will be

represented on a jury panel, defense counsel must take special care to identify and select jurors

who can be receptive to the defense theme even though each potential juror can also be viewed

as a potential plaintiff.

Development of the case theme early in the litigation is essential to effective jury

selection. The case theme is the ―story‖ that explains the case in simple and common sense

terms so that jurors can understand the motivation of the employer and the logical sequence of

events that led to the employment decision in dispute. A compelling and convincing theme is the

heart of the persuasion process and often will influence jurors to ignore contradictions and

weaknesses in a case. This is so because a well-developed theme provides jurors with a

plausible explanation and rationale for deciding the controversy that is consistent with the law

and facts presented. Although the opening statement is the fullest opportunity to articulate the

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defense theme, voir dire also is an important opportunity for beginning to condition the jury

panel.

Jury research results highlight the importance of effectively communicating the

case theme during voir dire. Studies by psychologists and social scientists reveal that from the

jurors' perspective, their task is to learn new and complicated information in an unnatural

environment. In post-trial interviews, jurors equate trials to being in school, where the goal is

not only to learn the facts but also to ―solve the problem‖ with the right answer. Although most

jurors have preconceived ideas and beliefs, they are only likely to act on them if the case before

them is incomprehensible. If jurors fail to grasp the essential information in the case, they will

fall back on personal experience and pre-existing beliefs. The overwhelming majority of jurors

report that they enjoy jury service and would serve again. This suggests that jurors believe they

perform a valuable service. A clear presentation of the facts within the framework of the

defense's theme takes advantage of this attitude and enhances the odds that the jury will hear,

understand and accept the defendant’s case.

B. Voir Dire Techniques

The intelligent exercise of peremptory challenges depends on the accumulation of

information about each juror to determine whether he or she fits the profile of a person likely to

view the employer's case favorably. To accomplish this, defense counsel must get the

prospective jurors to relax and talk. This is best accomplished by asking open-ended questions

calling for the expression of opinions and feelings rather than ―yes‖ or ―no‖ answers. A juror’s

answer to an open-ended question not only reveals much more information, but also gives insight

into his or her thought processes. This will help the defense make a better judgment about

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whether to select the juror. In addition, creating a dialogue with prospective jurors helps foster

the rapport that is essential to persuasion.

Questioning of the jury panel must be balanced by defense counsel's explanation

of some of the facts of the case, at least in broad terms. Although judges will prevent lawyers

from arguing their case during voir dire, wide latitude usually is given to provide some of the

basic facts of the dispute in order to provide a context for the questioning.

Sensitivity and respect for jurors is essential. Many questions posed to jurors call

for personal or emotional information they may not care to reveal to a roomful of strangers,

especially if the questions deal with a juror’s attitude towards or experience with his or her own

employer. Extreme care must be taken to avoid embarrassing a juror or creating an impression

of insincerity or insensitivity. Likewise, attorneys should refrain from intentionally or

unintentionally intimidating jurors by calling attention to the real or perceived differences in

their respective intellect and/or life experiences. Common vocabulary, short questions and a

conversational tone are much more effective than legal jargon and complicated explanations or

questions.

C. Specific Areas Of Inquiry

Some of the areas that warrant special inquiry during voir dire in an employment

case are:

1. The juror’s personal experience with adverse employment decisions such

as termination, layoff, demotion, suspension, etc., including the

experiences of family members and close friends.

2. The juror’s job history and any management or supervisory experience,

including the ability to hire, terminate and discipline.

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3. The juror’s attitude of management in general.

4. Personality traits and attitudes which may suggest the juror feels exploited

or is an underachiever, i.e., a juror who may be inclined to act on

vendettas or insecurities instead of judging the facts dispassionately.

5. Does the juror seem content and happy with his or her job and have a

healthy self-image? Jurors with high self-esteem are more likely to be

defense-oriented.

6. Attitudes towards corporate ―downsizing.‖

7. Experiences with unfairness on the job.

8. Membership in unions or other employee associations.

9. Experience with harassment and/or discrimination on the job.

10. Beliefs regarding the prevalence of discrimination in society.

11. If the juror is in the same protected group as the plaintiff, whether this

status will influence his or her decision.

D. Jury Consultants

The use of jury consultants is a controversial subject among trial attorneys. Many

attorneys who learned to select juries based on intuition and experience believe consultants add

little to the process. Other attorneys believe jury consultants can provide insights and

information that enhance the chances of winning.

Consultants usually have training as psychologists or social scientists and can

serve several functions, depending on the complexity of the case and the employer’s budget. For

example, the consultant can select a cross-section of people representative of those likely to

serve on the jury panel, present the group with information about the case, and elicit their

15

attitudes and verdict through oral or written questionnaires. A consultant can also be used as a

resource for developing case themes in the light of the composition of the expected jury.

Another option is for the attorneys to conduct a mock trial by presenting both

sides’ opening statements, summaries of key testimony and evidence, and closing arguments to a

representative pool of ―jurors‖ selected by a jury consultant. There are several advantages in

utilizing the services of a jury consultant or conducting a mock jury exercise. A mock trial can

sharpen the defense’s strategy and reveal weaknesses that were not otherwise apparent. A

consultant, with or without a mock trial, can help develop the profile of the ―most favorable‖

juror and provide insight into factors which may influence the outcome of the trial. Finally, a

mock trial can help to objectively assess the value of a case and assist the defendant in

determining the cost and efficacy of settlement.

V. HOW JURORS LISTEN

Jurors are ordinary people torn away from their daily routines and placed in an

unfamiliar and highly regimented environment. They are asked to make profound decisions:

guilty or not guilty, a plaintiff or defense verdict, an award of damages or no damages, life

imprisonment versus the death penalty. After the jurors have been instructed in complex legal

terminology almost incapable of immediate comprehension, they are asked to determine which

of two conflicting versions of the facts is correct. Indeed, they are asked in Solomon-like

manner to reject the veracity and reliability of witnesses and documentary evidence presented by

one party in favor of that presented by another.

A. Storytelling

Years of study of jury behavior have shown that, from an information processing

standpoint, all jurors engage in similar intellectual exercises regardless of the issues in the case

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or the persuasive powers of the lawyers. Each juror strives to make sense of the conflicting

information he or she receives by formulating a story that explains the situation in familiar terms.

The ―juror story‖ about the case is the picture of the case the juror will remember long after the

trial has ended. This ―juror story‖ is the essence of the case, reduced to the three or four key

messages or themes that define the case from the juror’s perspective. As the storyteller, the trial

lawyer can affect how a juror describes the case and defines his or her own juror story.

The human mind has little tolerance for discrepant or ambiguous information.

Consequently, a comfortable intellectual framework for the juror is the ancient story form which

easily lends itself to the tasks of organizing information and reconciling conflicting data. Studies

suggest that most individuals choose to organize information into a story as opposed to other

potential organizing schema. Thus, while a trial lawyer may choose a variety of methodologies

to organize the issues and facts in a case, most jurors naturally tend toward the organizational

structure of storytelling.

B. Themes

Defense counsel must tell a complete story -- which includes a compelling theme,

a specific narrative structure and narrative elements -- in the opening statement if he or she is to

persuade jurors to form a favorable opinion of the case.

Themes are as ancient as humankind, and those that are most effective are

universal in experience. Themes are abstractions, concepts that assist jurors to define ―the case

story.‖ The relationship between a trial story and its themes is akin to the relationship between a

folk tale and the moral message the tale illustrates. Themes also allow jurors to make inferences

and reach conclusions about the parties’ motives. Themes are an important part of the story

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because they promote unity, tie the characters in the case together and create consistency

between the plot and subplot. Themes are the organizing principles of the case story.

Themes have an important additional function, serving as significant cues in the

later stages of the trial when jurors’ attentions wane and they begin to fade in and out during

important witness testimony or the closing arguments. In the same way the exit sign or familiar

landmark brings a daydreaming driver back into focus, themes serve as sign posts reminding

jurors it is time to redirect their attention because important information is forthcoming.

Obviously, a party’s theme must have broad appeal to those in the intended

audience, the jury. To be most effective, a theme must evoke an emotional response in each of

the listeners. Perhaps most important, however, the theme must be simple yet provocative,

capable of rendering meaning in one thought or sentence and yet be profound.

Illustrating the power of the simple yet provocative theme is a book by William J.

Bennett, Secretary of Education and Chairman of the National Endowment for the Humanities

under President Ronald Reagan and Director of the Office of National Drug Control Policy under

President George Bush. The Book of Virtues: A Treasury of Great Moral Stories has had the

unintended effect of providing many civil and criminal lawyers with a cornucopia of themes and

storylines for litigated matters. In The Book of Virtues, Mr. Bennett describes the impact of

what he regards as the ten ―virtues‖ of humanity and traces their relevance throughout history.

Sophisticated trial lawyers have recognized that constructing a theme or a storyline around these

virtues -- self-discipline, compassion, responsibility, friendship, work, courage, perseverance,

honesty, loyalty and faith — can be the foundation of a winning trial strategy. These virtues

exemplify the five identifiable characteristics of a good theme:

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1. they are ―user friendly‖ and have broad appeal to most audiences;

2. they evoke an emotional response in the listener;

3. they are compatible with each other;

4. they may be simply and briefly described; and

5. they resonate of profound human experience.

On the more practical side, a properly-formulated theory or theme must take into

account both the strengths and weaknesses of the party’s case. The central premise of a theme

must be plausible and must not appear overly constrained by only the strong points. The theme

must appeal to the jurors’ natural sense of probability, their common sense. If the theme is not

sensible or plausible, the entire case is in jeopardy.

VI. EMPHASIZING FAIRNESS IN DEFENDING YOUR CASE

Jurors insist upon an elemental and fundamental sense of fairness in every

disputed matter. Many experienced trial attorneys have experienced a jury returning a verdict in

favor of a plaintiff upon facts that simply did not appear to support the result. The element of

surprise may have been enhanced in such instances if the panel seemed to be composed of

―good‖ jurors for the defense, perhaps long-term, management-level employees. Thus, before

presenting any case, seasoned defense counsel frequently review the influences or experiences of

jurors described below to determine liability and assess damages in employment cases.

A. Self-Esteem

In this day and age, individuals identify dramatically with and draw their self-

esteem from their place of employment. Recent studies suggest that Americans derive a large

portion of self-worth from their performance at and standing in the workplace. As a

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consequence, any actions by the employer which are perceived as unfair, disloyal or as a

violation of the trust between a loyal employee and his or her employer may cause jury

resentment and motivate jurors to respond with a punitive verdict.

B. Trauma Of Job Loss

The trauma of job loss is feared by all jurors, whether on behalf of themselves or

their loved ones. Even for jurors who are retired or who have never experienced job loss,

testimony concerning the trauma of termination or job loss can be threatening and intimidating.

Jurors are expected to sympathize and perhaps identify with a plaintiff. As a consequence, it is

imperative for the defense to demonstrate not only employer compliance with the letter of the

law, but fair and equitable treatment proportionate to the offense committed by the employee.

Jurors often are offended by any rude or disrespectful behavior toward the plaintiff during his or

her last days of employment. Such offensive treatment includes: a public announcement of an

individual’s termination; depriving a long-term employee of the opportunity to say good-bye to

co-workers or to clear out his or her office; or impersonal or indirect methods of terminating

employment, such as doing so by written correspondence or by canceling computer access or

other electronic access to the workplace. These factors alone can overcome an otherwise

competent defense and can result in a disproportionate monetary award to a plaintiff.

C. Consistency With Written Policies

Jurors in employment cases expect the policies which resulted in the disputed job

action to be written, well-published, well-known and sensible, often holding the defendant

employer to a higher standard of care than the standards to which hold themselves or their own

employers. To a juror, it should never be a surprise that an employee was disciplined or

terminated. Jurors also tend to expect a record of the effort that was made to resolve workplace

20

differences or to improve workplace deficiencies. Examples of these efforts include progressive

discipline, implementation of an action plan with easily understood areas of improvement and

issuance of a ―final warning.‖

D. Juror Outrage

Jurors often express outrage in their verdicts. Legal reports are filled with

examples of verdicts whose size seem disproportionate to the substantive and remedial

arguments at issue. For instance, in Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568 (8th Cir.

1997), the U.S. Court of Appeals for the Eighth Circuit affirmed in part and reversed in part a

$50 million punitive damage jury verdict for a single employee in a sexual harassment case. The

District Court had reduced the award of $50 million in punitive damages to $5 million, and the

Court of Appeals further reduced the award to $350,000 consistent with limitations under Title

VII of the Civil Rights Act of 1964 and the Missouri Human Rights Act.

Kimzey had complained of a hostile environment created by an assistant store

manager who, over a period of years, frequently referred to female employees with crude and

offensive language, such as ―fat bitch,‖ ―stupid‖ and ―idiot.‖ Kimzey repeatedly complained to

members of Wal-Mart senior management but was ignored or ridiculed. In a final act of

condescension, a senior manager offered Kimzey night-time employment when she announced

her intention to resign due to the harassing environment and management’s indifference to her

complaints.

While the award of punitive damages was dramatically and properly reduced by

both the District Court and the Court of Appeals, the lesson of the Kimzey case is clear. Rogue

juries wield considerable power. Indeed, the District Court in Kimzey noted the magnitude of

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that power may have been exercised, in part, due to defense counsel’s excessively aggressive and

rude treatment of the plaintiff on cross-examination.

Emotional juror response may very well have been at the root of a number of

seemingly disproportionate awards issued in employment cases over the past few years. For

example, in Jordan v. Bates Advertising Holdings, Inc., 816 N.Y.S.2d 310 (N.Y. Sup. Ct. N.Y.

Co. 2006), a New York judge upheld a $2.5 million jury award to an employee with multiple

sclerosis who claimed she was terminated because her employer perceived her to be disabled.

Jordan walked with a cane due to the degenerative nature of her MS. She alleged her supervisors

called her a cripple and harassed her about her need to use a cane. The jury awarded Jordan $2

million in compensatory damages and $500,000 in punitive damages. The court affirmed the

damage award, noting that the defendant’s EEO compliance officer disregarded the company’s

antidiscrimination policy and failed to discipline the employees who called Jordan a cripple.

Similarly, in Watson v. E.S. Sutton, Inc., 02 Civ. 2739, 2005 U.S. Dist. LEXIS

31578 (S.D.N.Y. Sept. 6, 2005), aff’d, 225 Fed. Appx. 3 (2d Cir. Nov. 27, 2006), a jury awarded

a former salesperson $500,000 in emotional distress damages, $884,000 in back pay, $550,000 in

front pay and $2.5 million in punitive damages after finding that the company terminated Watson

in retaliation for her complaining about sexually explicit comments made by a co-worker.

Although the court reduced the emotional distress damages to $120,000 and the punitive

damages award to $717,000, the court commented that Watson’s testimony was credible and

believable. Conversely, the testimony of Watson’s direct supervisor, the company’s executive

vice-president and the alleged harasser, was ―inconsistent, deliberately vague and not particularly

believable.‖

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Jurors may also be swayed by the emotional appeal of self-serving testimony

provided by plaintiffs in employment cases. In Hall v. Pa. Dep’t of Corr., 2006 U.S. Dist.

LEXIS 68670 (M.D. Pa. Sept. 25, 2006), the jury returned a verdict in favor of Hall on her

retaliation and hostile work environment claims and awarded her compensatory damages for

emotional distress in the amount of $1,000,000. The jury awarded Hall a seven figure verdict

even though she never saw a mental health practitioner for assistance with her alleged emotional

distress and there was no corroborating testimony from any other witness regarding the

emotional trauma she purportedly experienced. After the trial the court reduced the award to

$300,000 pursuant to statutory limitations. The defendant subsequently filed post-trial motions

for judgment as a matter of law and remittitur of the damage award. The court granted the

defendant’s motion for judgment as a matter of law with respect to the retaliation claim and

further reduced the compensatory damage award to $75,000.

As the above cases demonstrate, the defense of every employment-related case

must emphasize the concept of fairness. Despite the employee’s legal burden of proof, the

employer bears the practical burden of persuading the jury on this point. It is not enough to

prove strict compliance with the law; today’s jurors demand and expect more. The natural

tendency of jurors is to hold the more powerful employer responsible for miscommunications,

misunderstandings and insignificant matters that arguably should be overlooked. Failure to

anticipate the expectations of the average juror in an employment case and the concomitant

failure to weave an all-important element of fundamental fairness into the employer’s defense

may have disastrous effects in today’s business climate.

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VII. OPENING STATEMENTS

There is no fundamental difference between an opening statement in an

employment discrimination trial and an opening statement made in any other type of trial. The

primary goal is to communicate why a verdict should be awarded to one’s client based on the

facts counsel believes will be admitted into evidence. Facts and legal theories may vary

considerably, but the principles of effectively developing and shaping a case do not.

The opening statement or presentation permits an attorney to preview the

evidence to the jury at the outset of the case. Even if evidence may later be challenged during

the trial, the opening statement presents an opportunity to tell a story in narrative form and to

shape the jurors’ views as they listen to the facts unfold. To develop this phase of the trial to the

maximum extent possible, defense counsel should jettison any notion that the opening statement

is merely a recitation of operative facts in chronological order. Effective opening presentations

require defense counsel to weave the defendant’s trial themes with the facts which are critical to

obtaining a defendant’s verdict, and anchoring those concepts in the minds of the jurors through

the use of visual imagery.

An opening presentation should accomplish several things. It should develop a

theme that informs the judge and jury of what the evidence will prove. It should also explain and

preview the evidence so the jury understands what is about to occur. In addition, the opening

statement must define terms and concepts the jury will encounter, highlight facts which are

essential to the case, and neutralize or minimize the impact of facts which are adverse. However,

the presentation should be given life -- it should allow each juror to see the story in his or her

24

mind’s eye. To be effective, the opening statement must be interesting to members of the jury --

if it is not, they will tune it out within minutes.

A. Foundation For Opening Presentations

1. Attorney demeanor

The most basic prerequisite of a persuasive opening statement is that the attorney

appears to have confidence in his or her ability to make a compelling presentation to the jury.

Experienced trial lawyers use opening statements as the initial instrument of rational persuasion

on the evidence. By demonstrating careful preparation and clear organization, the attorney

should convey the impression that he or she has mastered the case and is confident of a favorable

outcome. The jury must have the feeling that the attorney and the position he or she espouses are

correct. Creating this feeling turns upon the attorney’s ability to maintain a demeanor that

instills confidence and respect for his or her client’s position.

2. The opening statement is a promise the attorney must keep.

The opening presentation is a promise to the jury -- a promise of what the

evidence will prove and one which should not be made lightly. The person who coined the

phrase ―honesty is the best policy‖ may not have been a trial lawyer, but this is very sound

advice to anyone who empanels a jury to search for truth and administer justice between

contentious litigants.

Sincerity is an equally important trait for counsel to convey during the opening

statement. Every aspect of a trial lawyers’ conduct must be sincere. A jury can be remarkably

perceptive -- and a perception of dishonesty or insincerity at the outset of the trial cannot be

overcome easily, if at all. Jurors do not expect perfection, but they do expect counsel to be

25

genuine and the witnesses to back up the statements which counsel for both parties make during

their opening presentations.

The opening statement should be your own. If you depart from your individual

style, you will jeopardize the integrity of the presentation. You may learn from styles or

mannerisms that you see in others, but it is best to avoid mimicry.

3. Principle of primacy

The opening presentation in an employment case represents the first time counsel

may be able to communicate directly with the jury in an effort to persuade the jurors to take a

particular course of action. Studies on the dynamics of human relationships have determined

that this first communication is of critical importance. A University of Chicago School of Law

study found that in eighty percent (80%) of the trials studied, the jury’s verdict on liability was

consistent with the initial impression the jury formed after the parties’ opening statements.

Thomas Riley, The Opening Statement: Winning at the Outset, 82 American Journal of Trial

Advocacy 225 (1979). This principle of ―primacy‖ is at the heart of a good persuasive opening

statement. What is heard first is generally what is believed and is usually what the jury will

retain throughout the case. John A. Call, Handling the Jury: The Psychology of Courtroom

Persuasion, 16 SPG Brief 47 (Spring 1987). Simply stated, jurors tend to believe that which

they hear first and most frequently. To borrow from Irving Younger: ―if a juror hears a fact

once, he believes that it is possibly true; if he hears it twice, he figures it is probably true; but if

he hears it for a third time, then God Almighty cannot dislodge it from his mind.‖

The art of advocacy in an opening presentation is to present the facts in such a

way that there is only one conclusion which can be drawn from them -- the conclusion you are

presenting. Therefore, one should never waive an opening statement if one is representing the

26

defendant. To allow the plaintiff to present his or her own story in a uncontradicted manner; at

the beginning of the case, would make it extremely difficult for the defendant to overcome the

principle of primacy as the trial proceeds.

4. Court rules governing opening statements

Court rules pertaining to opening statements vary considerably; in fact, there are

some federal jurisdictions which do not permit opening statements at all. Other jurisdictions

limit opening statements to a set amount of time, sometimes as short as fifteen minutes per side.

Still others permit opening statements of almost any duration. It goes without saying that

counsel should review the local rules of court and their judge’s individual practice rules

pertaining to opening statements and trial presentation at the outset of a case. In addition to

aiding counsel in the planning process as the case progresses, knowledge of these rules forces

counsel to look to the end of the discovery process and determine what will be essential to

prepare the case for trial. Rules concerning the subjects which may be discussed in opening

statements vary considerably. However, two rules are virtually uniform: (1) it is impermissible

to comment directly on the law other than to state the nature of the case in general terms; and (2)

counsel cannot misstate evidence or attempt to introduce evidence which clearly is inadmissible.

The basic difference between the opening presentation and the closing argument

is that the trial lawyer cannot be ―argumentative‖ during the opening and must also refrain from

discussing questions of law in any detail. It is permissible, however, to describe the legal nature

of the claims being made and contested.

The definition of ―argumentative‖ is fairly loose and courts have not set rigid

boundaries differentiating description from argument. The basic rule is that trial counsel cannot

―argue‖ the facts of the case during the opening statement. However, it is permissible to describe

27

the facts which will be proved during the trial in such a manner and sequence that they make an

argument leading to a logical conclusion. This rule does not require that the facts of the case be

presented in neutral or dispassionate manner. To the contrary, an effective presentation

constantly challenges the limits of the opening statement and takes every opportunity to present

the case in a compelling manner.

5. Planning the opening statement

The most effective planning for an opening presentation is that which is

conducted from the very outset of the litigation. Effective planning entails developing the key

facts of the case as early as possible in the investigation and discovery phases of the litigation.

However, the importance of these facts may be lost if they are not viewed with the theme or

themes of the case in mind. It is virtually impossible to resurrect key facts and witnesses as trial

approaches. Defendants in discrimination actions usually have most of the facts available to

them at the very outset of such cases, and defense counsel should work with appropriate

corporate personnel to make sure this critical evidence is not lost. Defense counsel should

evaluate the facts at this initial stage and develop the theme or themes that will guide the defense

through the remainder of the litigation.

The theme or themes of the case should be refined during the discovery phase of

the litigation. At the beginning of discovery, defense counsel should prepare an initial outline of

themes. This outline should be reviewed periodically to make sure ―the forest is not obscured by

the trees.‖ A discovery plan that complements the theme or themes of the case is helpful in

several respects -- it will keep the focus of the case sharp and clear, and will help weed out areas

that are relatively unimportant. This type of planning saves money and ensures the case is being

prepared effectively.

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Planning the opening presentation requires that the trial lawyer and members of

the litigation team take into account the following general areas:

1. How to tell the jury the facts in a story format, using only a main theme or

themes;

2. Developing the visual aids that will best describe the story;

3. Working to ensure the story is clear, concise and cogent; and

4. Deciding whether to acknowledge and explain weaknesses in the

defendant’s case and to show how they are offset by stronger and more

persuasive evidence, or to ignore those weaknesses which are not outcome

determinative.

As described in Sections V and VI above, developing a defense theme or themes

is the most important aspect of preparing an opening statement. In planning the opening

presentation in employment cases, attention must be given to the jury’s tendency to identify with

the plaintiff employee more easily than the defendant employer. This is natural, for most jury

members fall into the category of employee. Those who are business owners often will be

excused from jury service for hardship unless their business can somehow carry on without

them. If business owners are not excused, they often are among the first individuals to be

excused through the plaintiff’s exercise of peremptory challenges. Either way, the jury in an

employment case overtly or subconsciously will identify with the plaintiff. As a result, the

defense theme must focus on some aspect of human experience that will overcome this natural

tendency.

An effective theme must focus on something that transcends the immediate

dispute. In those cases where the employee is dismissed and alleges the dismissal was motivated

29

by discriminatory conduct, the business enterprise must be prepared to articulate a non-

discriminatory basis for the dismissal. However, this may not carry the day. There is no such

thing as a standard defense theme, but one factor does stand out -- the business enterprise must

be able to prove the dismissal was justified and fair.

In employment discrimination cases, fairness often is equated with due process

concepts, such as: (1) did the employer provide the employee with reasonable notice of

legitimate business requirements such as standards, expectations and/or goals; (2) did the

employer provide the employee with a reasonable opportunity to achieve the employer’s

legitimate business requirements; and (3) did the employer give the employee a reasonable

opportunity to be heard? Employers can also demonstrate fairness by showing the plaintiff had

knowledge of and control over obstacles or challenges he or she encountered at work (e.g.,

participation in welcome conduct), or the employer lacked knowledge or control over factors

which contributed to the condition or status the employee seeks to contest (e.g., failure to

complain about alleged impropriety or to mitigate alleged damages). By proving the employee

had the ability to change or avoid unpleasant circumstances, the employer empowers the jury to

advocate the employer’s position and hold the employee accountable for failing to take

responsibility for meeting the employer’s legitimate expectations.

6. Structuring the opening statement

The introduction to the opening statement should be short and powerful. It should

grab the attention of the jury from the outset by presenting a picture of a plaintiff who does not

deserve their verdict and demonstrating why that is the inevitable conclusion based on the facts

which they will learn as the trial progresses. This must be done within a brief period of time –

30

defense counsel should not dilute the impact of his or her message with repetition. Essentially,

defense counsel should summarize why the jury should find for his or her client.

Following the introductory statement of the case, defense counsel can present a

more detailed overview of the facts that will be adduced in evidence. Counsel can review with

the jury what the principal witnesses will say, or maintain flexibility by declining to identify

specific sources of evidence. Although counsel cannot marshal the evidence to the extent that

occurs during closing arguments, counsel can explain how evidence will be pieced together to

lead to a conclusion about the relative merits of the parties’ contentions. Counsel should try to

tie this information to the assertions made during the introductory portion of the opening

statement to reinforce what was said at the outset. In addition, counsel should address and

minimize any harmful evidence that will be introduced during the trial. Counsel can also use this

opportunity to facilitate the jury’s understanding of the evidence they will receive by briefly

explaining any unfamiliar terminology that will be used by the witnesses, especially those who

will be testifying as expert witnesses.

The conclusion to the opening should reaffirm the position that was stated at the

outset and bring the presentation full circle. As an example, it should show in concrete terms

why the plaintiff cannot satisfy his or her burden of proof on issues of liability and, where

appropriate, on items of damages that are claimed. Returning to and reinforcing the theme or

themes of the defense in this manner provides the jurors with a sense of closure that solidifies the

validity of the defendant’s position before the jury moves into the evidence-gathering phase of

the trial.

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VIII. ADDITIONAL OPPORTUNITIES FOR REINFORCING TRIAL THEMES

As stated in Section VII above, effective trial preparation is a process that begins

during defense counsel’s initial investigation of the plaintiff’s claims and continues throughout

the conduct of the trial. The following checklist of pre-trial and post-trial activities contains

suggestions for building effective trial presentations, brick by brick, through a number of

additional tools at counsel’s disposal.

A. Chronologies

In addition to preparing and refining lists of trial themes, it is helpful for defense

counsel to prepare a chronological list of significant events at the outset of the case and to

supplement this chronology as additional facts are learned during the course of discovery.

Chronologies can assist counsel in organizing large amounts of information and in appreciating

relationships between events based on proximity or duration of time. As cases proceed and

larger amounts of information are accumulated, chronologies can serve as roadmaps which

counsel can use to ensure that salient facts are not overlooked.

B. Pre-Trial Order

The pre-trial order establishes the contours or context of the evidence that may be

admitted during the course of trial. The length and content of pre-trial orders varies greatly

among judges. Judges also differ in their willingness to allow evidence to be admitted at trial

which is not referenced or contemplated by the parties’ pre-trial order. As a result, great care

must be taken to follow the trial judge’s individual practice rules in preparing pre-trial orders.

When used properly, pre-trial orders are essential for ensuring the orderly

progress of trial. Pre-trial orders typically contain: (1) jurisdictional statements; (2) summaries

32

of claims and defenses; (3) stipulated facts; (4) summaries of disputed facts; (5) damage

categories and calculations; (6) witness lists; (7) pre-marked exhibit lists, with related objections;

(8) designations of deposition pages to be read into evidence in lieu of in-court testimony; and

(9) estimates of trial length. Pre-trial orders force opposing counsel to work together to refine

the issues to be tried and delineate the potential universe of evidence that will be submitted to the

jury for its consideration. Since all parties are bound by the strictures of the pre-trial order, it is

imperative for opposing counsel to work cooperatively to ensure their respective parties’ rights

are preserved. In addition, since ―trial by ambush‖ has been supplanted with trial following

discovery, counsel should avoid surprising their adversaries with last-minute or inexplicable

additions to the parties’ joint pre-trial order.

C. In Limine Motions

Prior to the commencement of trial, counsel for the parties often file in limine

motions asking the court to preclude certain evidence from being introduced at trial. Examples

of in limine motions in employment discrimination cases include motions to exclude: (1) co-

worker testimony about the plaintiff’s job performance, qualifications and/or claims; (2)

evidence regarding the alleged mistreatment of co-workers who are not comparators of the

plaintiff; (3) copies of administrative determinations issued by fair employment practices

agencies like the U.S. Equal Employment Opportunity Commission and the New York State

Division of Human Rights; (4) allegedly discriminatory statements made by employees who did

not participate in any adverse employment decisions at issue; (5) disciplinary or counseling

measures pertaining to defense witnesses that are unrelated to the performance problems at issue

in the case; (6) proprietary, medical or other confidential information that is unrelated to the

claims and/or defenses in the case; (7) affidavits prepared by witnesses who are scheduled to

33

testify in person at trial; and/or (8) information or documents that were not produced in

discovery.

In limine motions are designed to promote fairness by eliminating irrelevant,

prejudicial and unreliable evidence. For example, in limine motions often ask the court to

exclude evidence on the grounds that its probative value is outweighed by the danger of unfair

prejudice, jury confusion or delay its introduction would create. In limine motions are also used

to exclude evidence which represents hearsay or which is not based on the personal knowledge

of a witness. These motions can be helpful for ensuring that trial themes are not obscured by

evidence which may encourage jurors to render verdicts based on illogical or inflammatory

considerations.

D. Jury Charges And Special Verdict Forms

The judge is the trier of the law and the jury is the trier of the facts. Trial judges

require counsel to submit proposed jury charges to assist the court in explaining the law

governing the parties’ claims and defenses to the jury. Defense counsel can support their efforts

to persuade the jury to render a verdict favorable to the defendant by preparing jury charges

which cogently describe the legal standards applicable to the parties’ dispute in a manner which

anticipates the facts the defendant intends to elicit at trial. To increase the likelihood of having

the judge adopt the defendant’s proposed jury charges, defense counsel should support the

charges with ample and accurate citations to controlling statutes and case law.

Special verdict forms can play a similar role in supporting jurors to reach

conclusions that are consistent with the defendant’s trial themes. These forms present the jury

with specific questions to answer in determining the liability and damages at issue. Through

careful drafting, special verdict forms can help focus juror attention on factual and legal elements

34

that are consistent with defense themes and remind jurors of the parties’ respective burdens of

proof on these elements.

E. Closing Arguments

In literary terms, the parties’ closing arguments represent the climax of the trial.

Closing arguments afford defense counsel the opportunity to review the documentary and

testimonial evidence adduced at trial, synthesize the evidence in a manner consistent with the

defendant’s trial themes, and urge the jury to endorse the defendant’s conclusions regarding the

parties’ respective legal rights. Although this may seem like a daunting task, counsel is

permitted to use argument to analyze and explain the evidence at closing. This can be an

extremely liberating experience, unconstrained by the restrictions on argument applicable to

opening statements.

In light of the scope and flexibility of closing argument, it represents the ideal

time for defense counsel to remind the jurors of the parties’ trial themes and the promises each

attorney made during opening statements. It is extremely effective for defense counsel to

demonstrate, through reference to specific evidence, that defendant kept the promises which

were made during defendant’s opening statement. It is equally effective to remind the jury of

any promises to elicit evidence on which plaintiff failed to deliver. In this regard, it is far better

to undersell during the opening statement and over-deliver during the closing argument than to

oversell during the opening and under-deliver during the closing.

Closing argument also provides defense counsel with the opportunity to persuade

jurors by using the evidence to explain the parties’ respective motivations. Selecting themes

and/or stories that explain human behavior in a manner consistent with the evidence adduced at

trial enables jurors to make logical inferences and reach conclusions based on the evidence, and

35

to resolve ambiguities that may exist, in a manner favorable to the defendant. Utilizing the

closing argument to flesh out themes outlined during the opening statement is also extremely

effective in providing jurors with insight, creating a sense of closure through consonance, and

increasing juror conviction in the propriety of defendant’s position through the principle of

recency. Using themes and stories to interpret evidence in this manner also assists jurors in

remembering key concepts and advocating for the defendant when the jury retires to deliberate.

F. Motions For Judgment As A Matter Of Law And For A New Trial

The Federal Rules of Civil Procedure also provide defense counsel with tools for

avoiding and responding to adverse jury verdicts in situations where the evidence adduced at trial

warrants a different outcome. Rule 50(a) allows the court to enter a judgment as a matter of law

for the defendant where the plaintiff ―has been fully heard on an issue during a jury trial and the

court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for

the [plaintiff] on that issue.‖ Fed. R. Civ. P. 50(a). If defense counsel feels the plaintiff has not

satisfied his or her burden of proof one or more elements of any claims at issue, defense counsel

can and should move for the entry of judgment as a matter of law on the claim after the plaintiff

rests his or her case. If the court denies the motion, defense counsel can renew the motion at the

close of the defendant’s case. Fed. R. Civ. P. 50(a)(2). If the court continues to deny the motion

and the jury returns a verdict for the plaintiff, defendant can renew its motion for judgment as a

matter of law under Rule 50(b) after the jury is discharged. Fed. R. Civ. P. 50(b).

A motion for judgment as a matter of law made by the defendant can be granted if

the evidence, viewed in the light most favorable to the plaintiff, is insufficient to permit a

reasonable juror to find in favor of the plaintiff. Galdieri-Ambrosini v. Nat’l Realty & Dev.

Corp., 136 F.3d 276, 289 (2d Cir. 1998). In ruling on such a motion, the court must give

36

deference to all credibility determinations and reasonable inferences made by the jury, and

cannot weigh the credibility of witnesses or consider the weight of the evidence. Id. The court

can grant the motion where: (1) there is such a complete absence of evidence supporting the

verdict that the jury’s findings could only have been the result of sheer surmise and conjecture;

or (2) there is such an overwhelming amount of evidence in favor of the defendant that

reasonable and fair-minded jurors could not arrive at a verdict against the defendant. Id.

In addition to moving for judgment as a matter of law under Rule 50(b), the

defendant can seek to overturn an adverse jury verdict by moving for a new trial under Rule

59(a). The standards for evaluating the evidence under Rule 59(a) are less stringent than the

standards applicable to Rule 50(b) motions. Katara v. D.E. Jones Commodities, Inc., 835 F.2d

966, 970 (2d Cir. 1987). The court can grant a motion for a new trial if it concludes the jury

reached a seriously erroneous result or the verdict is a miscarriage of justice. DLC Mgmt. Corp.

v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998). This occurs when the court is

convinced the verdict is against the weight of the evidence. Id. See Byrd v. Blue Ridge Rural

Elec. Coop., 356 U.S. 525, 540, 78 S. Ct. 893 (1958).

Verdicts are considered to be against the weight of the evidence when they so

excessive as to suggest they were motivated by passion, prejudice and/or surmise rather than a

reasoned assessment of the evidence of injury presented at trial. Manley v. AmBase Corp., 337

F.3d 237, 244-45 (2d Cir. 2003); Lee v. Edwards, 101 F.3d 805, 808 (2d Cir. 1996). In

conducting the Rule 59(a) analysis, the court can weigh conflicting evidence and need not view

the evidence in the light most favorable to the plaintiff. DLC, 163 F.3d at 134; Song v. Ives

Lab., Inc., 957 F.2d at 1047 (2d Cir. 1992). In fact, the court can grant a new trial even if there is

substantial evidence supporting the jury’s verdict. DLC, 163 F.3d at 133-34.

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Rule 50(a) and 59(b) motions represent defense counsel’s final pre-appellate

opportunity to marshal the evidence and convince the trial court to alter the jury’s determination.

The success of such motions often turns on defense counsel’s ability to use defendant’s trial

themes to argue that the verdict cannot be reconciled with the evidence adduced at trial.

IX. CONCLUSION

The most important element in building effective trial presentations is planning.

A well-constructed litigation plan that is developed at the outset of a case and refined through the

discovery and pretrial phases of litigation is the most useful tool in defense counsel’s arsenal.

Defense counsel should use themes and stories to explain facts in a manner that resonates with

jurors and enables them to resolve disputed issues in favor of the defendant. These methods of

communication and persuasion will enable defense counsel to create a solid foundation for

executing the litigation plan through trial and maximizing the defendant’s ability to obtain a

favorable verdict.

Faculty Biographies

SCOTT T. BAKEN

Scott T. Baken is a partner with Jackson Lewis LLP, a national law firm

dedicated to the practice of workplace law. Mr. Baken received a B.S. degree in

Industrial and Labor Relations from Cornell University in 1981, and a J.D. degree from

the Fordham University School of Law in 1984. Mr. Baken has participated in numerous

wrongful discharge and employment discrimination trials and appellate proceedings in

state and federal courts throughout the United States. He also defends employers in

administrative proceedings before fair employment practice agencies, lectures and

advises clients on subjects such as sexual harassment, reductions in force and the

implementation of preventive personnel practices designed to increase productivity,

enhance morale and ensure compliance with the many federal, state and local laws that

impact the workplace. Mr. Baken is a Fellow of the Litigation Counsel of America, a

trial lawyer honorary society whose members are selected on the basis of their

effectiveness, accomplishment in litigation and trial work, and ethical reputation.

257540 v1

Anne L. ClarkVladeck, Waldman, Elias & Engelhard, P.C.

1501 Broadway, Suite 800New York, New York 10036

(212) 403-7300

Anne L. Clark is a partner at Vladeck, Waldman, Elias & Engelhard, P.C.,

and concentrates on employment discrimination and other employment-related matters.

She graduated from New York University and New York University School of Law. Prior to

joining Vladeck, Waldman she served as Law Clerk to Honorable Raymond J. Pettine of

the United States District Court for the District of Rhode Island and was a Skadden

Fellow/Staff Attorney with the NOW Legal Defense and Education Fund, where she worked

on employment-related matters. Ms. Clark is an adjunct faculty member at Fordham

University School of Law and has lectured on employment matters for a variety of

organizations.

BERKE-WEISS & PECHMAN LLP

ATTORNEYS AT LAW 488 MADISON AVENUE

NEW YORK, NEW YORK 10022 (212) 583-9500 · FAX: (212) 308-8582

WWW.BWP-LAW.COM Louis Pechman represents both employers and employees before federal and state courts and government agencies in all areas of workplace law, including employment discrimination, union-management relations, employment contracts, ERISA, non-competition agreements, independent contractor issues, and wage/hour disputes. As a practitioner for over twenty years in the labor and employment field, Mr. Pechman offers both individual employees and employers practical guidance on improving the employment relationship and, where appropriate, terminating that relationship. Prior to forming his partnership ten years ago with Laurie Berke-Weiss, Mr. Pechman has worked as a labor and employment attorney at three Manhattan law firms, as in-house labor counsel with the New York Daily News, and as a Field Examiner with the National Labor Relations Board. Admitted to the New York and New Jersey Bars, he is a graduate of the Cornell University School of Industrial and Labor Relations and the Fordham University School of Law. A frequent contributor to the New York Law Journal and other business and legal publications, Mr. Pechman often gives presentations on employment law topics, including the Americans with Disabilities Act, sexual harassment, and the development of human resource policies and procedures. He has lectured at the Fordham University School of Law, New York University, the Extension Division of the Cornell University School of Industrial and Labor Relations, and the American Bar Association. From 1994 through 1998, he was Chair of the New York County Lawyers' Association Committee on Labor Relations and Employment Law. Since 1996, Mr. Pechman has developed and moderated NYCLA's annual program on "How to Handle an Employment Discrimination Case."

New York(212) 415-9262 P(212) 953-7201 F singer.david@dorsey.com

David C. SingerPartner

Mr. Singer is a litigation partner and has served as lead litigation and trial counsel

on matters involving business contracts, executive employment agreements,

restrictive covenants, fiduciary duty, interference with business relationships, fraud,

misappropriation of trade secrets, employment termination, commercial

misrepresentation, employment discrimination, real estate valuations and other

commercial matters. He has successfully tried and defended cases in federal and

state courts and arbitration panels, and represented clients in appellate arguments,

mediations and negotiations. Mr. Singer advises clients on litigation avoidance and

preparedness and performs litigation risk assessments. Mr. Singer also focuses on

alternative dispute resolution, and has served for more than 20 years both as an

arbitrator and mediator handling business and executive employment matters.

Representative LitigationBeijing Huakong Technology Co. Ltd. v. SMAR Equipamentos Industriais Ltda

(lead counsel for Brazilian respondent-counterclaimant in arbitration under the

auspices of Stockholm Chamber of Commerce between high-tech Chinese and

Brazilian corporations involving claims of breach of contract for failure to provide

product that conformed to specifications, and counterclaims for theft of computer

software and related technology; arbitration held in London; award in favor of

respondent on claims and award of counterclaims)

Brady & Sun, Inc., v. Four Seasons Solar Products Corp. (lead counsel for

defendant solarium manufacturer and distributor in complex federal court

contract and unfair trade practices case; jury verdict for defendant and award of

counterclaims)

Mark Jones v. Canon Business Solutions-East, Inc. (defense of employment

discrimination/whistleblower action in Michigan federal court asserting retaliation

and unlawful termination of employment; summary judgment awarded in favor

of defendant)

Willis Re Inc. v. Simon Hudson and John B. Collins Associates, Inc. (lead counsel

for corporate defendant in action asserting claims of breach of restrictive

covenant, confidentiality agreements and fiduciary duty, tortious interference

with contracts; summary judgment awarded in favor of defendant; affirmed on

appeal)

Peter Connolly v. Canon U.S.A., Inc. (defense of age discrimination case,

including successful trial before New York State Division of Human Rights)

Koren-DiResta Construction Co., Inc. v. Indonesian Mission to the United Nations

(lead counsel in AAA arbitration for owner in construction dispute; after 22 days

of hearings, settled for nominal amount)

Aero Falcon, S.A. v. G. Andrew Deutsch and Falcon Jet Aircraft (lead counsel for

owner of Argentinian jet aircraft distributor brought by prior owner alleging

interference with contract and related claims; after three week bench trial in New

Jersey Superior Court, decision in favor of defendant)

Matt Ellman v. Marcella Corporation (lead counsel for defendant in New Jersey

litigation involving claims by independent contractor for unpaid sales

commissions and other compensation; favorably settled)

Elghanayan v. Eshaghian (lead counsel for respondents in AAA arbitration

concerning real estate partnership dispute among partners, including contract,

fiduciary duty, constructive trust and fraud claims; after hearing, award in favor

of respondents)

Electricity Pensions Trustee Limited v. Creek Funding Corporation and Sarakreek

Holding N.V. (lead counsel for British pension fund in arbitration under auspices

of the International Chamber of Commerce concerning alleged multi-million

dollar breach of stock purchase agreement involving sale of hotel and office

complex; favorably settled)

Mt. Lucas Associates, Inc. v. MG Refining and Marketing, Inc. (lead counsel for

plaintiff/counterclaim-defendants in action involving commodities investment

consulting agreement, including contract, fiduciary duty, securities and

commodities claims; partial summary judgment granted and affirmed on appeal;

successful bench trial of remaining claims)

Fidelity Partners, Inc. v. First Trust of New York National Association (defense of

federal claims involving international indirect securities holding systems;

dismissal of claims and affirmance on appeal by Second Circuit)

1174 Lexington Avenue Owners Corp. v. 1174 Lexington Avenue Corp. (lead

counsel for defendant in commercial lease dispute; after bench trial, decision in

favor of defendant)

Elghanayan v. Eshaghian (lead counsel for defendants in partnership dissolution

action; after trial involving valuation of commercial and residential real property,

decision in favor of defendants)

Experience as ADR Neutral

Over 20 years of experience as neutral mediator and arbitrator, including as chair

of three arbitrator panels and single arbitrator. Known for case management skill

and moving cases to conclusion in an efficient and cost effective manner. As

neutral, arbitrated more than 100 cases, including breach of dealer contract

between large telecommunications company and dealer; breach of executive

employment agreements between former executive employees and financial

institutions; breach of series of contracts between insurance company and

pharmaceutical company; breach of agreement concerning sale of accounting firm;

breach of agreement between importer and distributor of alcoholic beverages;

breach of contract involving sale of restaurant business; contract dispute between

major electronics manufacturer and computer software vendor; determination of

liability for losses between purchaser and seller of seed company. As neutral,

mediated more than 100 cases, including disputes between supplier and purchaser

of computer technology products; financial institutions and former executive

employees; religious institution and catering and restaurant vendor; retail

employer, EEOC, ethnic based rights organization and former employees; real

estate owner/developer and consultant/broker; and employment discrimination

cases.

Member, Panel of Arbitrators of American Arbitration Association

Member, Panel of Mediators of American Arbitration Association

Member, CPR Panel of Distinguished Neutrals

Fellow, The College of Commercial Arbitrators

Member, Roster of Neutrals for the Commercial Division ADR Program in New

York State Supreme Court, New York County

Court Appointed Mediator Pursuant to Mandatory Mediation Program in U.S.

District Court, Southern District of New York

Court Appointed Mediator and Arbitrator Pursuant to Plan for Court-Annexed

Mediation and Arbitration in U.S. District Court, Eastern District of New York

Mediator, FINRA Dispute Resolution Mediation Program

Court Appointed Arbitrator, Civil Court of the City of New York

Certified Mediator, International Mediation Institute

Admissions New York

New Jersey

United States Court of Appeals for the Second Circuit; United States District

Courts for the Southern and Eastern Districts of New York, District of New Jersey

and Eastern District of Michigan

HonorsListed in Best Lawyers in America, 2010 & 2011

AV Peer Review Rated by Lexis-Nexis Martindale Hubbell

EducationNew York University School of Law

J.D., 1980, Recipient of Moot Court Advocacy Award; Selected as member of

Moot Court Board; Selected as member of Urban Law Clinic

University of Pennsylvania

B.A., 1976, magna cum laude

Urban Studies; Dean’s List with Distinction

Professional ActivitiesMember, Associations of the Bar of the State and City of New York, including

Employment Law and Alternate Dispute Resolution Sections of the New York

State Bar Association

Chairman of the Board, Project Enterprise, a microfinance, job creation, anti-

poverty non-profit organization, providing micro-lending, business training,

networking opportunities, access to markets and pro bono legal services.

PresentationsPresenter, "Preparing for Mediation: Tips for the Advocate and Tips for the

Mediator," Dispute Resolution and Labor and Employment Sections of the New

York State Bar Association, October 2009; Speaker, "Employment Mediation,"

New York County Bar Association, 2001, 2003

Attorney Articles"The Duty of Good Faith in Mediation Proceedings," New York Law Journal,

August 25, 2010

"Title VII Retaliation Claims: What Constitutes Protected Activity?," New York

Law Journal, March 9, 2004