Effectively Litigating Employment Cases from Inception Through Trial

The Florida Bar Continuing Legal Education Committee and the Labor and Employment Law Section

Effectively Litigating Employment Cases From Inception Through Trial

COURSE CLASSIFICATION: INTERMEDIATE LEVEL

September 17-18, 2015

One Location: West Palm Beach Marriott 1001 Okeechobee Boulevard West Palm Beach, FL 33401-6214

Course No. 1987R CLE Publications of The Florida Bar Expert guidance to best serve the needs of those practicing Law in Florida

Stay current with the latest developments in Florida by consulting CLE Publications from The Florida Bar. Written by veterans of the Florida Courts, these publications offer Business Law expert advice shaped by the special consideration of Florida law. Our titles are now avaialble in eBook format, for easier access and Estate Planning & portability.

Administration

Family Law

Expanding your library with Jury Instructions eBooks? Make optimal use of your research time with LexisNexis® publications for The Florida Bar in portable eBook format. Access our extensive list of titles from leading attorneys and expert Real Property Law authors—on your schedule and on the device of your choice. For the latest listing of titles, go to: www.lexisnexis.com/flaebooks. Rules of Procedure Order Today! Trial Practice www.lexisnexis.com/flabar Call toll-free 800.533.1637

Did you know that you can receive a 20% DISCOUNT on future updates for these publications?

Call 800.533.1637 and learn how easy it is to save 20% by becoming a subscriber under the Automatic Shipment Subscription Program and to obtain full terms and conditions for that program.

SATISFACTION GUARANTEE: Examine and return your publication(s) within 30 days of receipt, at your expense, for a full credit of the advertised price, less shipping and handling fees, and any other discount credits.

LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc. Other products or services may be trademarks or registered trademarks of their respective companies. ® 2014 LexisNexis. All rights reserved. OFF03029-0 CLE Publications of The Florida Bar Expert guidance to best serve the needs of those practicing Law in Florida

BUSINESS LAW REAL PROPERTY LAW Business Litigation in Florida FasTrain — Mortgage Foreclosure Creditors’ and Debtors’ Practice in and Alternatives Florida Florida Condominium and Florida Corporate Practice Community Association Law Florida Small Business Practice Florida Construction Law and Practice Florida Eminent Domain Practice and Procedure Florida Real Property Complex ESTATE PLANNING AND Transactions ADMINISTRATION Florida Real Property Litigation Administration of Trusts in Florida Florida Real Property Sales Transactions Asset Protection in Florida Florida Real Property Title Examination and Insurance Basic Estate Planning in Florida Foreclosures in Florida Florida Guardianship Practice Florida Will and Trust Forms Manual RULES OF PROCEDURE Automated Forms Version Florida Criminal,Traffic Court, and Florida Will and Trust Forms Appellate Rules of Procedure Manual Florida Probate Rules Florida Will and Trust Forms Manual & Automated Forms Florida Civil, Judicial, Small Claims, Version Combo and Appellate Rules with Florida Litigation Under Florida Probate Code Evidence Code Practice Under Florida Probate Code Florida Rules of Juvenile Procedure The Florida Bar Probate System

FAMILY LAW (see also TRIAL PRACTICE) Adoption, Paternity, and Other TRIAL PRACTICE Florida Family Practice Evidence in Florida Drafting Marriage Contracts in fasTrain — Florida Civil Trial Florida Preparation Florida Dissolution of Marriage Florida Administrative Practice Florida Family Law Case Florida Appellate Practice Summaries Florida Automobile Insurance Law Florida Family Law Set Florida Civil Practice Before Trial (Rules Florida Civil Trial Practice and Statutes) Florida Medical Malpractice Florida Juvenile Law and Practice Handbook Florida Proceedings After Dissolution of Marriage Did you know that you can receive a 20% DISCOUNT on future updates for these publications?

JURY INSTRUCTIONS Call 800.533.1637 and learn how easy it is to save 20% by becoming a subscriber under Florida Standard Jury Instructions the Automatic Shipment Subscription Program and to obtain full terms and conditions for that program. in Civil Cases SATISFACTION GUARANTEE: Examine and return your publication(s) within 30 days of Florida Standard Jury Instructions in receipt, at your expense, for a full credit of the advertised price, less shipping and handling fees, and any other discount credits. Criminal Cases

For complete descriptions or TO ORDER

LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties www.lexisnexis.com/flabar Inc. Other products or services may be trademarks or registered trademarks of their respective companies. toll-free 800.533.1637 ® 2014 LexisNexis. All rights reserved. OFF03029-0

Common Questions About CLER

1. What is CLER? CLER, or Continuing Legal Education Requirement, was adopted by the Supreme Court of Florida in 1988 and requires all members of The Florida Bar to continue their legal education.

2. What is the requirement? Over a 3 year period, each member must complete 30 hours, 5 of which are in the area of ethics, professionalism, substance abuse, or mental illness awareness.

3. Where may I find information on CLER? Rule 6-10 of the Rules Regulating The Florida Bar sets out the requirement. All the rules may be found at www.floridabar.org to Rules Updates to Rules Regulating The Florida Bar.

4. Who administers the CLER program? Day-to-day administration is the responsibility of the Legal Specialization and Education Department of The Florida Bar. The program is directly supervised by the Board of Legal Specialization and Education (BLSE) and all policy decisions must ultimately be approved by the Board of Governors.

5. How often and by when do I need to report compliance? Members are required to report CLE hours earned every three years. Each member is assigned a three year reporting cycle. You may find your reporting date either by going to www.floridabar.org to Member Profile to CLE Status Inquiry or the mailing label of The Florida Bar News.

6. Will I receive notice advising me that my reporting period is upcoming? Three months prior to the end of your reporting cycle, you will receive either: 1) a CLER Reporting Affidavit, if you still lack hours; or, 2) a CLER Notice of Compliance, if you have completed your hours.

7. What do I do with the Affidavit? You are to update and correct the form, complete any hours you lack, and sign and return the affidavit by your reporting date. Complete instructions appear on the reverse side of the form.

8. What do I do with the Notice of Compliance? If the information is correct, you need not respond. This document is your confirmation that you have completed the requirement for your current reporting cycle.

9. What happens if I am late returning my Affidavit or do not complete the required hours? You run the risk of being deemed a delinquent member which prohibits you from engaging in the practice of Florida law.

10. Will I receive any other information about my reporting cycle? Approximately 45 days prior to the end of your reporting cycle, if you have not yet completed your hours.

11. Are there any exemptions from CLER? Rule 6-10.3(c) lists all valid exemptions. They are: 1) Active military service 2) Undue hardship (upon approval by the BLSE) 3) Nonresident membership (see rule for details) 4) Full-time federal judiciary 5) Justices of the Supreme Court of Florida and judges of district, circuit and county courts 6) Inactive members of The Florida Bar

12. Other than attending approved CLE courses, how may I earn credit hours? Credit may be earned by: 1) Lecturing at an approved CLE program 2) Serving as a workshop leader or panel member 3) Writing and publishing in a professional publication or journal 4) Teaching (graduate law or law school courses) 5) University attendance (graduate law or law school courses)

13. How do I submit various activities for credit evaluation? Applications for credit may be found either on our website, www.floridabar.org, or in the directory issue of The Florida Bar Journal following the listing of Board Certified Lawyers.

14. How are attendance hours posted on my CLER record? If you registered for a seminar through The Florida Bar Registrations Department, the credit will be posted to your record automatically. If the course is sponsored by a Florida Bar Section or another organization, you can post your credits online.

15. How long does it take for hours to be posted to my CLER record? When you post your CLE credit online, your record will be automatically updated and you will be able to see your current CLE hours and reporting period.

16. How may I find information on programs sponsored by The Florida Bar? You may wish to visit our website, www.floridabar.org, or refer to The Florida Bar News. You may also call CLE Registrations at 850/561-5831.

17. If I accumulate more than 30 hours, may I use the excess for my next reporting cycle? Excess hours may not be carried forward. The standing policies of the BLSE, as approved by the Supreme Court of Florida specifically state in 6.03(b): ... CLER credit may not be counted for more than one reporting period and may not be carried forward to subsequent reporting periods.

18. Will out-of-state CLE hours count toward CLER? Courses approved by other state bars are generally acceptable for use toward satisfying CLER.

19. If I have questions, whom do I call? You may call the Legal Specialization and Education Department of The Florida Bar at 850/561- 5842.

While online checking your CLER, don’t forget to check your Basic Skills Course Requirement status.

PREFACE

The course materials in this booklet were prepared for use by the registrants attending our Continuing Legal Education course during the lectures and later in their offices.

The Florida Bar is indebted to the members of the Steering Committee, the lecturers and authors for their donations of time and talent, but does not have an official view of their work products.

CLER CREDIT (Maximum 9.0 hours)

General ...... 9.0 hours Ethics ...... 1.0 hours

CERTIFICATION CREDIT (Maximum 9.0 hours)

Labor & Employment Law ...... 9.0 hours

Seminar credit may be applied to satisfy both CLER and Board Certification requirements in the amounts specified above, not to exceed the maximum credit. Refer to Chapter 6, Rules Regulating The Florida Bar, see the CLE link at www.floridabar.org for more information about the CLER and Certification Requirements.

Prior to your CLER reporting date (located on the mailing label of your Florida Bar News) you will be sent a Reporting Affidavit (must be returned by your CLER reporting date) or a Notice of Compliance which confirms your completion of the requirement according to Bar records (does not need to be returned). You are encouraged to maintain records of your CLE hours.

CLE CREDIT IS NOT AWARDED FOR THE PURCHASE OF THE COURSE BOOK ONLY.

CLE COMMITTEE MISSION STATEMENT

The mission of the Continuing Legal Education Committee is to assist the members of The Florida Bar in their continuing legal education and to facilitate the production and delivery of quality CLE programs and publications for the benefit of Bar members in coordination with the Sections, Committees and Staff of The Florida Bar and others who participate in the CLE process.

COURSE CLASSIFICATION

The Steering Committee for this course has determined its content to be INTERMEDIATE.

LABOR & EMPLOYMENT LAW SECTION

Hon. Frank E. Brown, Tallahassee — Chair Leslie W. Langbein, Miami — Chair-Elect Cathleen A. Scott, Jupiter — 2015-2016 Legal Education Director Zascha Blanco Abott, Miami — 2014-2015 Legal Education Director

FACULTY & STEERING COMMITTEE

David Adams, Tampa — Program Co-Chair Kristen M. Foslid, Miami — Program Co-Chair

Hon. Cecilia M. Altonaga Marc Bendick, Washington, D.C. Tad Delegal, Jacksonville Zachary J. Glaser, Tampa Pamela Guerrier, West Palm Beach Jeff Hajny, Miami Patrick Martin, Miami Ana Consuelo Martinez, Miami Jerrod Mills, Tampa Javier Peral II, Miami Hon. Patricia A. Seitz Adam Sharp, Tampa Sam Smith, Tampa Hon. Ursula Ungaro Robert E. Weisberg, Miami

CLE COMMITTEE

Patrick Imhof, Tallahassee — Chair Terry L. Hill — Director, Programs Division

For a complete list of Member Services visit our web site at www.floridabar.org.

LECTURE PROGRAM

Thursday, September 17, 2015

5:00 p.m. – 6:00 p.m. Labor and Employment Law Section Executive Council Meeting (all invited)

6:00 p.m. – 7:00 p.m. Reception (included in registration fee)

Friday, September 18, 2015

8:30 a.m. – 8:55 a.m. Late Registration

8:55 a.m. – 9:00 a.m. Welcome David W. Adams, Bennett, Jacobs & Adams, P.A., Tampa Kristen M. Foslid, Equal Employment Opportunity Commission, Miami

9:00 a.m. – 10:00 a.m. Navigating the EEOC & FEPA Process Robert E. Weisberg, Regional Attorney, Equal Employment Opportunity Commission, Miami Pamela Guerrier, Director, Palm Beach County Office of Equal Opportunity, West Palm Beach

10:00 a.m. – 10:50 a.m. Preparing for Trial: Motions in Limine, Jury Instructions, and the Pretrial Conference Zachary J. Glaser, Bennett, Jacobs & Adams, P.A., Tampa

10:50 a.m. – 11:00 a.m. Break

11:00 a.m. – 12:00 noon A View from the Bench: Litigating Employment Discrimination Claims Moderator: Patrick Martin, Greenberg Traurig, P.A., Miami The Honorable Patricia A. Seitz, U.S. District Court for the Southern District of Florida The Honorable Cecilia M. Altonaga, U.S. District Court for the Southern District of Florida The Honorable Ursula Ungaro, U.S. District Court for the Southern District of Florida

12:00 noon – 12:50 p.m. Lunch (included in registration fee)

12:50 p.m. – 1:45 p.m. Effective Trial Themes and Techniques David W. Adams, Bennett, Jacobs & Adams, P.A., Tampa Ana Consuelo Martinez, Equal Employment Opportunity Commission, Miami

iii

Friday, September 18, 2015 (cont.)

1:45 p.m. – 2:40 p.m. Working with Experts: Using Statistical Evidence in Employment Discrimination Cases Sam Smith, Burr & Smith, L.L.P., Tampa Marc Bendick, Jr. Ph.D., Bendick and Egan Economic Consultants, Inc., Washington, DC

2:40 p.m. – 3:35 p.m. Ethical Issues in E-Discovery Javier Peral II, Hogan Lovells, Miami Jeff Hajny, Litigation Support, Berger Singerman, Miami Adam Sharp, EHounds.com, Tampa

3:35 p.m. – 3:45 p.m. Break

3:45 p.m. – 4:35 p.m. Jury Selection Techniques Jerrod Mills, Chief Operating Officer, Trial Exhibits, Inc., Tampa

4:35 p.m. – 5:30 p.m. Damages in Employment Discrimination Cases Tad Delegal, Delegal Law Offices, P.A. Jacksonville

TABLE OF CONTENTS

NAVIGATING THE EEOC & FEPA PROCESS Robert E. Weisberg, Regional Attorney, Equal Employment Opportunity Commission, Miami Pamela Guerrier, Director, Palm Beach County Office of Equal Opportunity, West Palm Beach

I. Navigating the EEOC & FEPA Process – PowerPoint Presentation ...... 1.1 II. Recent Legal Developments in Employment Discrimination and at the EEOC – PowerPoint Presentation ...... 1.10

PREPARING FOR TRIAL: MOTIONS IN LIMINE, JURY INSTRUCTIONS, AND THE PRETRIAL CONFERENCE Zachary J. Glaser, Bennett, Jacobs & Adams, P.A., Tampa

I. Motions In Limine ...... 2.1 II. Basic Grounds for Motions In Limine ...... 2.1 III. Specific Areas for Employment Law Motions In Limine ...... 2.2 IV. The EEOC/FCHR Determination ...... 2.2 IV. Motion In Limine to Exclude Comparator Evidence ...... 2.3 V. Motions to Exclude “Me Too” Evidence ...... 2.4 VI. Preservation for Issue for Appeal ...... 2.5 VII. Jury Instructions ...... 2.7

A VIEW FROM THE BENCH: LITIGATING EMPLOYMENT DISCRIMINATION CLAIMS Moderator: Patrick Martin, Greenberg Traurig, P.A., Miami The Honorable Patricia A. Seitz, U.S. District Court for the Southern District of Florida The Honorable Cecilia M. Altonaga, U.S. District Court for the Southern District of Florida The Honorable Ursula Ungaro, U.S. District Court for the Southern District of Florida

I. Discovery ...... 3.1 II. Pretrial Conferences ...... 3.1 III. Motions for Summary Judgment ...... 3.2 IV. Motions In Limine ...... 3.3 V. Jury Instructions ...... 3.4 VI. Trial Briefs ...... 3.4 VII. Voir Dire ...... 3.4 VIII. Trial Strategies ...... 3.4 IX. Post Trial Motions...... 3.5 X. Any Other Issues ...... 3.5

EFFECTIVE TRIAL THEMES AND TECHNIQUES David W. Adams, Bennett, Jacobs & Adams, P.A., Tampa Ana Consuelo Martinez, Equal Employment Opportunity Commission, Miami

I. Introduction ...... 4.1 II. The Art of Persuasion ...... 4.1 III. The Critical Importance of Selecting a Theme ...... 4.10 IV. Direct Examination ...... 4.17 V. Use of Exhibits ...... 4.32 VI. Cross-Examination and Redirect ...... 4.37 VII. Sources ...... 4.50

WORKING WITH EXPERTS: USING STATISTICAL EVIDENCE IN EMPLOYMENT DISCRIMINATION CASES Sam Smith, Burr & Smith, L.L.P., Tampa Marc Bendick, Jr. Ph.D., Bendick and Egan Economic Consultants, Inc., Washington, DC

I. Communicating with Experts: What Is and Is Not Protected ...... 5.1 II. Why Use Statistical Evidence in Employment Discrimination Cases? PowerPoint Presentation ...... 5.8 III. Bendick Declaration in Ellis v Costco ...... 5.10

ETHICAL ISSUES IN E-DISCOVERY Javier Peral II, Hogan Lovells, Miami Jeff Hajny, Litigation Support, Berger Singerman, Miami Adam Sharp, EHounds.com, Tampa

No Materials

JURY SELECTION TECHNIQUES Jerrod Mills, Chief Operating Officer, Trial Exhibits, Inc., Tampa

No Materials

DAMAGES IN EMPLOYMENT DISCRIMINATION CASES Tad Delegal, Delegal Law Offices, P.A. Jacksonville

I. Damages Under Specific Statutes ...... 8.1 II. Categories of Damage ...... 8.10 III. Attorney’s Fees and Costs ...... 8.20

AUTHORS/LECTURERS

DAVID ADAMS is a labor and employment lawyer and a licensed CPA in Florida. His law practice includes the areas of labor and employment (generally employment defense), commercial litigation and intellectual property. He attended the University of Central Florida, Harvard University, Bentley College, and the Florida State University College of Law. He is a former practicing CPA with a Big-Six accounting firm and holds a master’s degree in taxation. Mr. Adams has been selected as a Superlawyer in Florida for several years and has been named by his peers as one of Florida Trend’s Legal Elite. Mr. Adams is active in The Florida Bar, serving on the Labor and Employment Law Section’s Executive Council. He has served as co- chair of the special projects committee and has participated in strategic planning for the section. He is Board Certified by The Florida Bar in Labor and Employment Law. Mr. Adams is admitted to practice in the United States District Court for the Northern, Middle, and Southern Districts, the United States Tax Court, the United States Court of Appeals for the Eleventh Circuit and the United States Supreme Court.

JUDGE CECILIA MARIA ALTONAGA is the first Cuban-American woman to be appointed as a federal judge in the United States. She was nominated for the position in the Southern District of Florida by President George W. Bush in 2003. Prior to her appointment, she was a circuit court judge for the Eleventh Circuit of Florida. As a circuit judge, she served in the juvenile and criminal divisions and handled appeals from the county court. She had previously served as a county judge in the civil, criminal and domestic violence divisions. Judge Altonaga received her J.D. degree in 1986 from the Yale Law School after graduating with highest honors from Florida International University. Prior to her judicial appointments, Judge Altonaga worked as a law clerk for Chief Judge Edward B. Davis of the United States District Court, Southern District of Florida. She practiced law as an assistant county attorney for the Miami-Dade County Attorney’s Office, specializing in local government law, with an emphasis in complex commercial and construction litigation, including appellate work in the state and federal courts.

MARC BENDICK, JR., Ph.D., an employment economist, is a principal in Bendick and Egan Economic Consultants, Inc. in Washington, D.C. Educated at the University of California, Berkeley, and the University of Wisconsin, he is the author of more than 130 books, articles in peer-refereed journals and other scholarly publications. His expert testimony has been accepted by forty-eight federal or state courts, and he has consulted or taught about litigation statistics for the EEOC, OFCCP, U.S. Department of Justice, American Bar Association, National Academy of Sciences and multiple non-profit organizations.

T.A. “TAD” DELEGAL, III graduated from the University of Florida with a bachelor of arts degree, a master of arts, and a juris doctor degree. He has practiced law in the Jacksonville area since 1991 and is the only Florida attorney who is Board Certified by The Florida Bar in the areas of both Labor and Employment Law and State and Federal Administrative Practice. He is a member of the State and Federal Administrative Practice Certification Committee, past chair of The Florida Bar Labor and Employment Certification Committee, and past chair of The Florida Bar Grievance Committee 4(D). Mr. Delegal serves as a member of the Jacksonville Bar Association’s Board of Governors, is a founding member of San Marco Rotary and received the “Twelve Who Care” award in 2004 for pro bono service to children with disabilities. He has received an “AV” rating from Martindale-Hubbell and has also been honored by Best Lawyers of America, Florida Trend’s Legal Elite, and Super Lawyers. He is a member of the American Board of Trial Advocates (ABOTA) and a Fellow of the American Bar Foundation.

vii

KRISTEN M. FOSLID is a trial attorney at the United States Equal Employment Opportunity Commission. Prior to joining EEOC, she was an associate at Hogan Lovells LLP and a judicial law clerk for the Honorable Patricia A. Seitz. Ms. Foslid serves on the Executive Council of The Florida Bar's Labor and Employment Law Section.

ZACH GLASER received his undergraduate degree in business management from the University of Maryland, College Park, and his J.D. and MBA from Stetson University College of Law, cum laude. At the University of Maryland, he was a Dean’s List student and a scholar- athlete while playing for the University of Maryland football team. During law school, Mr. Glaser received book awards for the highest grade in his section in Secured Transactions, Delaware’s Influence on Corporate Law, and International Sales and Arbitration. In recognition of his academic performance, Stetson's faculty nominated him to the National Dean's List 2006- 2007, All-American Scholars, and Who's Who Among Students in American Universities. As a member of Stetson’s Moot Court, Mr. Glaser won awards for both his writing and his oral advocacy while competing in the Willem C. Vis International Commercial Arbitration competition in Vienna, Austria, the second largest moot court competition in the world. Additionally, while in law school, he served as the sole legal intern to the general counsel of the Tampa Bay Buccaneers. Mr. Glaser currently practices in the areas of commercial litigation, labor and employment defense, intellectual property, real estate and business transactional law. Mr. Glaser is an active member of the American Bar Association, the Hillsborough County Bar Association and is the co-chair of the Hillsborough County Bar Association’s Community Services Committee.

PAMELA GUERRIER is the Director of the Palm Beach County Office of Equal Opportunity and has worked for that office since 2002. As Director, her primary duties include managing the investigation of alleged violations of Palm Beach County’s Equal Employment and Housing Ordinances and Places of Public Accommodation Ordinances and the enforcement of such ordinances. Her office also has a Worksharing Agreement with the U.S. Equal Employment Opportunity Commission and a Memorandum of Understanding with the U.S. Department of Housing and Urban Development, and she works closely with her federal counterparts.

JEFF HAJNY is a 1997 graduate of Hastings College in Hastings, Nebraska. He began his career in the legal industry after moving to Miami in 2000. Mr. Hajny has over fourteen years of law firm and litigation support experience and is currently litigation support manager for Berger Singerman in Fort Lauderdale. He has also worked with Greenberg Traurig, TrialGraphix, and Hogan & Hartson. He has an excellent command of Concordance, Summation, TrialDirector, Relativity, IPRO Ecapture/Eclipse and, AccessData’s Forensic Tool Kit software as well as computer hardware, network design, and Mac and Linux operating systems.

PATRICK F. MARTIN is a shareholder with Greenberg Traurig in Miami and focuses his practice on employment law matters. He received his law degree from the Florida State University College of Law and his B.A. from the University of Virginia. He is an Executive Council Member of The Florida Bar Labor and Employment Law Section.

ANA CONSUELO MARTINEZ is a trial attorney at the Equal Employment Opportunity Commission’s Miami District Office. Ms. Martinez began her legal career with EEOC at the New York District Office through EEOC’s Attorney Honors Program. She has experience litigating discrimination cases on behalf of EEOC for single and class claimants, as well as systemic and nationwide pattern or practice cases on the basis of sex/ pregnancy, race, color,

viii

religion, disability and age. Ms. Martinez earned her B.A. from Duke University in 2007 and her J.D. from NYU Law in 2010.

JERROD S. MILLS serves as both senior consultant and Chief Operating Officer at Trial Exhibits, Inc. As a senior consultant, Mr. Mills advises attorneys regarding the planning and development of persuasive trial presentations, including the creation of custom exhibits and the use of the latest courtroom technology. As Chief Operating Officer, Mr. Mills holds overall strategic and operational responsibility for Trial Exhibits, Inc., a nationwide, full-service litigation support company with professionals specializing in jury consulting, 3-D animation, trial graphics, custom medical exhibits and in-court presentations. Over the past decade, Mr. Mills has consulted on over 1,500 cases and provided over 3,000 hours of in- court/mediation/arbitration presentations. His areas of experience include product liability, personal injury, medical malpractice, toxic tort, transportation, property construction, employment, maritime, aviation and asbestos.

JAVIER PERAL II is an associate in Hogan Lovells' Miami office, advising clients on litigation, arbitration, and employment matters with a particular focus on commercial litigation and international arbitration. He graduated cum laude from Duke University and received his law degree from Harvard Law School.

PATRICIA A. SEITZ is a Senior United States District Court Judge for the Southern District of Florida, appointed by President Clinton. As a federal trial judge, she hears both criminal and civil cases. Prior to her appointment, Judge Seitz served as Chief Legal Counsel to the Drug Czar, Gen. Barry McCaffrey, in the White House Office of National Drug Control Policy (ONDCP). Before her work with ONDCP, Judge Seitz was a partner in the firm of Steel, Hector & Davis LLP, the first woman lawyer to be hired by the firm. Janet Reno, the Judge’s friend and mentor, joined the firm as its first woman partner two years later, in 1976. During Judge Seitz’s 22 years with the firm, she tried a broad range of cases, from commercial and business disputes to personal injury and regulatory matters. She also counseled domestic and international clients doing business in Florida and Brazil. She was a Florida Bar Certified Civil Trial Lawyer and was elected to membership in the International Society of Barristers and the American Board of Trial Advocates. She is a past President of The Florida Bar (1993-94), the first woman elected to that position, and also served on The Florida Bar’s Board of Governors, the ABA House of Delegates, The Florida Bar’s Young Lawyers Board of Governors and numerous committees in these organizations, which resulted in her being elected as a Fellow of the American Bar Foundation early in her legal career. Before taking the bench, Judge Seitz was a University of Miami litigation skills adjunct professor, as well as a frequent National Institute of Trial Advocacy faculty member, speaker, and author on discovery and trial skills and a Master in the Peter T. Fay Inns of Court. Judge Seitz obtained a B.A. degree, cum laude, from Kansas State University in 1968, and a J.D. degree in 1973 from Georgetown University Law Center where she was an editor of the Law & Policy in International Business Journal and a teaching fellow. She financed her legal education working for the Dallas Times Herald’s Washington Bureau, covering the U.S. Supreme Court.

ADAM SHARP is the President and CEO of E-Hounds, Inc. and Data Recovery Labs, Inc., founded in 1993. He has been qualified as an expert in data recovery, data analysis, computer forensics, information technology and e-discovery for over 17 years and in over 130 cases. Mr. Sharp is a computer crime consultant to a number of local, state and federal law enforcement agencies. He also provides computer evidence support to a broad range of government agencies and is a member of the American College of Forensic Examiners. He primarily focuses on ESI in ix

civil litigation, providing expert consultancy and testimony for both plaintiffs and defendants in over 1700 cases to date. Mr. Sharp lectures and presents at a number of seminars, Inns-of-Court, as well as Stetson University.

SAM J. SMITH is the managing partner of Burr & Smith, LLP in St. Petersburg. He practices complex class action, collective action, and multi-party litigation in wage and hour law, employment discrimination and civil rights. He received an award for Outstanding Service in Public Accommodations Law from the Washington Lawyers’ Committee for Civil Rights and Urban Affairs and a Foot Soldiers’ Award from the NAACP. He served on the Board of Editors of the Second Edition of The Fair Labor Standards Act Treatise and edited Chapter 19, “Collective Actions,” and Chapter 20, “Hybrid Class Actions.” Mr. Smith is also the past Florida chapter editor of Wage and Hour Laws, A State-by-State Survey. He is a past Plaintiff-Employee Co-Chair of the Federal Labor Standards Legislation Committee of the Section of Labor and Employment Law of the American Bar Association and the ABA FLSA Subcommittee, and the legislative liaison for the Wage & Hour Committee of the National Association of Employment Lawyers. Mr. Smith has represented plaintiffs in numerous multi-million-dollar wage and hour and employment discrimination class and collective actions.

JUDGE URSULA UNGARO has been a judge in the United States District Court for the Southern District of Florida since 1992, assigned to the Miami division. Judge Ungaro is a 1975 honors graduate of the University of Florida College of Law where she was a member of the Law Review editorial board. After graduating from law school, she practiced in the area of complex commercial litigation. She became a state court judge, 11th Judicial Circuit, in 1987 and served until her appointment to the federal bench. Judge Ungaro has published articles in the areas of administrative law and legal ethics. Since being appointed to the federal bench, Judge Ungaro has been involved in court administration, chairing many local committees and serving on the Judicial Resources Committee of the Judicial Conference of the United States from 1998 through 2006 where she chaired the Court Compensation Committee. She has many outside interests, including Legal Up!, a life skills and civics education curriculum delivered by local volunteer lawyers, judges and law students to at-risk teenagers in the Miami area.

ROBERT E. WEISBERG has served as the Regional Attorney for the Miami District Office of the U.S. Equal Employment Opportunity Commission since 2010. Prior to joining the EEOC, Mr. Weisberg maintained his own law practice in Miami for approximately twenty years. His practice emphasized representation of plaintiffs and other aggrieved individuals in civil rights cases, including employment discrimination and other employment-related issues. Mr. Weisberg conducted numerous jury and non-jury trials in employment discrimination and other civil rights matters in federal courts throughout Florida and argued appeals in the federal and state appellate courts. While in private practice, Mr. Weisberg was repeatedly recognized in Best Lawyers of America in the category of individual employment rights, served as a consultant for lawyers and legal aid organizations and has lectured to lawyers and other professionals in the area of civil rights and employment law. He has also served on the Local Rules Committee for the U.S. District Court for the Southern District of Florida, served as court-appointed Special Master in the Southern District in various civil matters and has been an Adjunct Professor of Law at the University of Miami School of Law. Mr. Weisberg has been Board Certified by The Florida Bar in Labor and Employment Law since 2001.

x NAVIGATING THE EEOC & FEPA PROCESS

Robert E. Weisberg, Miami Pamela Guerrier, West Palm Beach

8/25/2015

Palm Beach County Equal Employment Laws

Navigating the EEOC & FEPA Process Presented by: Pamela Guerrier, Director Palm Beach County Office of Equal Opportunity

Today You Will Learn About:

 The Palm Beach County Office of Equal Opportunity (“OEO”)

 Palm Beach County’s Equal Employment Ordinance

 Relation to State and Federal Equal Employment Laws

Palm Beach County’s Equal Opportunity Ordinance

Prohibits discrimination in employment based on race, color, religion, sex, national origin, age, handicap, marital status, sexual orientation, familial status and gender identity or expression.

1.1 1 8/25/2015

OEO Staff

 Director  Manager  Investigators (5)  Intake Technicians (2)  Disability Accessibility Specialist  Administrative Secretary  Secretary

Equal Employment Board

 The Equal Employment Board of Palm Beach County is comprised of nine (9) citizens of the County appointed by the Board of County Commissioners (“BCC”) to serve for staggered terms of two (2) years.  In addition to minority representation, the Board shall reflect representation for all ages, races, religious beliefs and types of employment.  Seven (7) of the appointments are district appointments and two (2) are at-large by the BCC.

The Federal laws prohibiting job discrimination are:

 Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;  the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;  the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;  Title I and Title V of the Americans with Disabilities Act of 1990 (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;  Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government; and  the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

1.2 2 8/25/2015

Discriminatory Practices

 Under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Florida Civil Rights Act (FCRA) and the Palm Beach County Equal Employment Ordinance it is illegal to discriminate in any aspect of employment, including:  hiring and firing;  compensation, assignment, or classification of employees;  transfer, promotion, layoff, or recall;  job advertisements;  recruitment;  testing;  use of company facilities;  training and apprenticeship programs;  fringe benefits;  pay, retirement plans, and disability leave; or  other terms and conditions of employment.  Discriminatory practices under these laws also include:  harassment on the basis of race, color, religion, sex, national origin, disability, or age;  retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;  employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities; and  denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.

State Equal Employment Laws

 The Florida Civil Rights Act, Chapter 760, Florida Statutes, is the anti-discrimination law in Florida. In Florida, it is against the law to discriminate in employment on the basis of race, color, religion, sex, national origin, age, disability or marital status.

Local Equal Employment Laws

 Cities and municipalities may also have local ordinances that prohibit employment discrimination. Palm Beach County has an Equal Employment Ordinance that protects individuals on the basis of race, color, religion, sex, national origin, age, disability, marital status, sexual orientation, familial status and gender identity or expression.

1.3 3 8/25/2015

Definitions under Palm Beach County Equal Employment Ordinance

 Employee means any individual employed by, or seeking employment from an employer  Employer means a person engaged in an industry affecting commerce who has fifteen (15) or more employees for each working day in each of four (4) or more calendar weeks in the current or preceding calendar year.  Employment agency is any person regularly undertaking, with or without compensation, to procure for employees opportunities to work for an employer; includes an agent of such person.

Who Can File a Charge of Discrimination?

 Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with OEO.

 In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity

How Is a Charge of Discrimination Filed?

 When filing a charge with the Palm Beach County Office of Equal Opportunity, you may be asked to fill out an intake questionnaire that may be submitted by facsimile, mail or in person at our office. Individuals who need an accommodation in order to file a charge (e.g., sign language interpreter, print materials in an accessible format) should inform the OEO so appropriate arrangements can be made.

1.4 4 8/25/2015

What Information Must Be Provided to File a Charge?

 The charging party's name, address, and telephone number;

 The name, address, and telephone number of the respondent employer, employment agency, or union that is alleged to have discriminated, and number of employees (or union members), if known;

 A short description of the alleged violation (the event that caused the complaining party to believe that his or her rights were violated); and

 The date(s) of the alleged violation(s).

Complaint Filing and Notice

 An “aggrieved person” may file a complaint with the OEO within 180 days of the alleged discriminatory practice.

 Charging party must sign the complaint under penalty of perjury that the information is true and correct.

 Notice of Charge of Discrimination provided to Respondent within 10 days.

 Respondent must submit a response within 30 days and must preserve all records and other evidence that may be pertinent to the investigation.

 Respondent may not retaliate against the Charging Party or any person participating in the investigation.

What Are the Time Limits for Filing a Charge of Discrimination?

 All laws enforced by the OEO , except the Equal Pay Act, require filing a charge with the EEOC before a private lawsuit may be filed in court. There are strict time limits within which charges must be filed:

 A charge must be filed with OEO within 180 days from the date of the alleged violation, in order to protect the charging party's rights under the County’s ordinance.

1.5 5 8/25/2015

Definitions under Palm Beach County Equal Employment Ordinance

Time Limits

 These time limits do not apply to claims under the Equal Pay  This 180-day filing Act, because under that Act deadline is extended persons do not have to first file to 300 days if the a charge with EEOC in order to charge also is have the right to go to court. However, since many EPA covered by a state or claims also raise Title VII sex local anti- discrimination issues, it may be discrimination law. advisable to file charges under For ADEA charges, both laws within the time limits only state laws indicated. extend the filing  To protect legal rights, it is always best to contact OEO limit to 300 days. promptly when discrimination is suspected.

What Agency Handles a Charge that is also Covered by State or Local Law?

 Many states and localities have anti-discrimination laws and agencies responsible for enforcing those laws. EEOC refers to these agencies as "Fair Employment Practices Agencies (FEPAs)." The OEO is a FEPA. Through the use of "work sharing agreements," EEOC and the OEO avoid duplication of effort while at the same time ensuring that a charging party's rights are protected under both federal and state law.

 If a charge is filed with the OEO and is also covered by federal law and/or state law, the OEO "dual files" the charge with EEOC. The charge usually will be retained by the OEO for handling.

 If a charge is filed with EEOC and also is covered by state or local law, EEOC "dual files" the charge with the state or local FEPA, but may retain the charge for handling.

1.6 6 8/25/2015

Worksharing Agreements

 Under Title VII, the ADA and the ADEA, the EEOC is authorized to enter into “Worksharing Agreements” with FEP Agencies. These agreements are required in order for the state and local agencies to enter into charge resolution contracts with the EEOC. These agreements provide for dual-filing of charges. Under Section 706 (b) of Title VII, the EEOC is required to accord substantial weight to the final findings and orders of FEP Agencies.

 See 42 U.S.C. Sections 2000e-4(g)1, 2000e-5(b) and 2000e-8(b). The U. S. Supreme Court has interpreted these sections to “envision the establishment of some sort of worksharing agreements between the EEOC and state and local agencies” and to permit these worksharing agreements as being “designed to avoid unnecessary duplication of effort or waste of time.” EEOC v. Commercial Office Products Co., 486 U.S. 107, 122; 46 FEP Cases 1265 (1988).

Investigating the Complaint

 The investigation must be completed within 100 days unless it is impractical to do so.

 If Charging party fails to provide requested information or to cooperate in the investigation, the complaint is dismissed.

 Respondent must allow the OEO access at all reasonable times to premises, records, documents, individuals, and other evidence or possible sources of evidence.

 The OEO may examine, record, and copy such materials and take and record the testimony or statements of such persons as are reasonably necessary for the furtherance of the investigation.

 The OEO has authority to issue subpoenas.

Conciliation Efforts

 Conciliation efforts are made throughout the investigation.

 Conciliation agreements must be approved by the OEO and become public record.

1.7 7 8/25/2015

Investigation Conclusion

 After the investigation is complete, the OEO determines if there is reasonable cause to believe that discrimination has occurred.

 Parties have 30 days after reasonable cause determination issued to engage in conciliation efforts.  If conciliation efforts are not successful, a Notice of Failure of Conciliation is issued. Charging Party has 30 days from the issuance of that notice to request an administrative hearing before the Equal Employment Board

Reasonable Cause Is Found

 Charging Party may :

1. Request an administrative hearing before the Equal Employment Board within 30 days after receiving notice of failure of conciliation.

2. File a lawsuit in state or federal court

 Respondent cannot appeal.

If No Reasonable Cause

 The Charging Party may file a lawsuit in federal or state court. The County’s Ordinance does not provide for enforcement by a private person if the OEO issues a “no reasonable cause determination.”

1.8 8 8/25/2015

 Palm Beach County Office of Equal Opportunity 301 N. Olive Avenue, 10th Floor West Palm Beach, FL 33401 Phone: (561) 355-4883 Fax: (561) 355-4932 Website: www.pbcgov.com/equalopportunity

Palm Beach County Office of Equal Opportunity

THANK YOU!

Presented by: Pamela Guerrier, Director Tel. (561) 355-4884 E-mail: [email protected]

1.9 9 RECENT LEGAL DEVELOPMENTS IN EMPLOYMENT DISCRIMINATION AND AT THE EEOC Robert E. Weisberg Regional Attorney EEOC Miami District Office August 2015

 Employment Discrimination Law  Dynamic , and constantly evolving.

 This past Supreme Court Term, three cases involving employment discrimination were decided.

 The EEOC was the Plaintiff in two cases, and closely involved in the issues raised in the third.

Young v. United Parcel Service, 135 S. Ct. 1338, 191 L. Ed. 2d 279 (March 25, 2015)

Pregnancy Discrimination Act

1.10 YOUNG V. UNITED PARCEL SERVICE, 135 S. Ct. 1338, 191 L. Ed. 2d 279 (March 25, 2015)

 Facts: Peggy Young, who worked for UPS as a part-time driver became pregnant in 2006. Because of a doctor’s recommendation, she requested to continue working with a lifting restriction. UPS denied her request, claiming that a lifting restriction meant she was unable to perform the essential functions of her position. As an alternative, Young requested a light-duty assignment. UPS denied the request since light-duty alternative assignments are only available to employees:

1. Injured on the job;

2. Suffering from ADA disabilities; and

3. Lost their DOT certification. Young was therefore forced to take unpaid leave, and lost her medical coverage for when she gave birth.

YOUNG V. UNITED PARCEL SERVICE, 135 S. Ct. 1338, 191 L. Ed. 2d 279 (March 25, 2015)

 Procedural History & Cert.:  Young filed lawsuit claiming discrimination based on pregnancy and alleged:

 UPS leave policies were facially discriminatory in that it denied alternate assignments to pregnant employees

 The PDA requires an employer to treat women affected by pregnancy the same as all other persons not so affected but similar in their ability or inability to work

 Established prima facie case of pregnancy discrimination under the McDonnell Douglas burden-shifting framework  District Court granted SJ for UPS on all claims.  Fourth Circuit affirmed.

 No direct evidence. Pregnant employees treated the same as all others not in groups granted alternative work assignments.  Supreme Court granted certiorari.

 How does the PDA apply in the context where employer’s alternative assignment policy accommodates many but not all workers with non pregnancy-related disabilities?

YOUNG V. UNITED PARCEL SERVICE, 135 S. Ct. 1338, 191 L. Ed. 2d 279 (March 25, 2015)

 Holding: 1. REVERSES grant of SJ but rejects broad literal interpretation of the PDA that requires pregnant employees be treated like all other workers not so affected but similar in their ability, or inability, to do the work. In so doing, rejects EEOC July 2014 guidance, and rejects giving pregnant employees what the court deems “favored nation” treatment. 2. Rejects UPS position that it was only required to treat pregnant workers like all others not covered by their exceptions. Holds that courts should apply the McDonnell Douglas analysis which requires the employee/applicant:

 First, establish a prima facie case by showing: (1) she is a member of a protected class; (2) she sought “accommodations”; (3) the employer did not accommodate her; and (4) employer accommodates others who are similarly situated in their ability or inability to work.

 Second, employer must articulate legitimate non discriminatory reason for the different treatment. Employer’s reason cannot simply be that it is “more expensive or less convenient” to add pregnant employees with same limitations to those accommodated.

 If reasons for denial are not strong or pre-textual, that fact permits inference of intentional discrimination.

1.11 YOUNG V. UNITED PARCEL SERVICE, 135 S. Ct. 1338, 191 L. Ed. 2d 279 (March 25, 2015)

 Implications:

1. EEOC July 2014 guidance was revised and new PDA guidance was issued on June 25th, 2015.

2. Plaintiffs in PDA cases can establish PF case by showing others were accommodated.

3. Failure to accommodate pregnant worker claims not likely to be dismissed on SJ.

4. The more pregnant workers are excluded, the more likely it is for courts to determine policy has a significant burden on pregnant employees.

5. Court recognized that ADA as amended may assist pregnant employees with limitations.

Mach Mining, LLC vs. E.E.O.C., 135 S. Ct. 1645 (Apr. 29, 2015)

EEOC’s Statutory Obligation to Conciliate

MACH MINING, LLC V. E.E.O.C., 135 S. Ct. 1645 (Apr. 29, 2015)

 Facts: Charges were filed with the EEOC by a woman claiming she was not hired as a coal miner because of her sex. Commission investigated, and found cause that the CP, and a class of women, were discriminated against because of their sex. In arriving at the determination, the EEOC invited all the parties to conciliate. About a year later, the EEOC issued a letter stating that the conciliation efforts were not successful. The EEOC then sued. In its answer, the employer asserted as an affirmative defense that the “EEOC had failed to conciliate in good faith prior to filing suit.” Commission moved for SJ directed to the affirmative defense contending conciliation efforts were not subject to judicial review.

1.12 MACH MINING, LLC V. E.E.O.C., 135 S. Ct. 1645 (Apr. 29, 2015)

 Procedural History & Cert.:  District Court denied EEOC’s motion.

At EEOC’s request, the District Court permitted an immediate appeal on the conciliation issue.  Seventh Circuit reversed.

Held that the statutory directive to conciliate is not subject to judicial review.  Supreme Court granted certiorari.

Whether and to what extent such an attempt to conciliate is subject to judicial consideration.

MACH MINING, LLC V. E.E.O.C., 135 S. Ct. 1645 (Apr. 29, 2015)  Holding:  Supreme Court reversed, but held that

 EEOC’s duty to attempt to conciliate is subject to limited judicial review.

 Rejects employer’s effort to take a “deep dive” into whether EEOC negotiated in good faith. EEOC not required to let employer know the minimum it would accept, factual and legal basis for all EEOC postures. Rejects analogy to NLRB good faith bargaining review.

 EEOC must:

 Endeavor to conciliate, no set amount of time.

 Inform employer of the specific allegation against it (usually done in the LOD).

 Inform employer of what it has done and which employees or class have suffered.

 Engage in some form of discussion so as to give the employer an opportunity to remedy alleged discriminatory practice.

MACH MINING, LLC V. E.E.O.C., 135 S. Ct. 1645 (Apr. 29, 2015)

 Implications: 1. Conciliation is no longer an affirmative defense. 2. Stay and not dismissal is the remedy if court finds no conciliation. 3. If issues arise regarding conciliation, these issues can generally be decided by affidavit. 4. Asplundh Tree no longer governs conciliations in the Eleventh Circuit. 5. Conciliations should not be viewed by Respondent Employer as “garden variety” mediation or settlement negotiations.

1.13 E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (June 1, 2015)

Religious Accommodation

E.E.O.C. V. ABERCROMBIE & FITCH STORES, INC., 135 S. Ct. 2028 (June 1, 2015)

 Facts: Samantha Elauf, a practicing Muslim, wears a headscarf consistent with her understanding of her religious requirements. Ms. Elauf applied for a position at an Abercrombie & Fitch store. Although otherwise qualified, Ms. Elauf was not hired because her headscarf conflicted with the store “Look Policy.” Management suspected she wore the headscarf for religious reasons, however, Ms. Elauf did not advise the employer about her reasons for wearing the headscarf.

E.E.O.C. V. ABERCROMBIE & FITCH STORES, INC., 135 S. Ct. 2028 (June 1, 2015)

 Procedural History & Cert.:  The EEOC filed suit on Ms. Elauf’s behalf.  District Court granted SJ on liability and jury awarded $20k.  Tenth Circuit reversed.  Awarded Abercrombie & Fitch SJ because ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of her need for an accommodation.  Supreme Court granted certiorari.  Whether an employer can refuse to hire an applicant in order to avoid accommodating a religious practice where an applicant has not informed the employer of the need for an accommodation.

1.14 E.E.O.C. V. ABERCROMBIE & FITCH STORES, INC., 135 S. Ct. 2028 (June 1, 2015)

 Holding:  Supreme Court reversed. An applicant need only show that a need for the accommodation was a motivating factor in the employer’s decision. An employer who acts with the motive of avoiding an accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that an accommodation would be needed. Title VII defines “religion” to include all aspects of religious observance and practice. Failure to accommodate is disparate treatment.

E.E.O.C. V. ABERCROMBIE & FITCH STORES, INC., 135 S. Ct. 2028 (June 1, 2015)

 Implications: 1. Employer violates Title VII when a motive for not hiring an applicant is to avoid providing religious accommodations, even if the employer does not actually know whether or not the applicant will need one. 2. By clarifying that denial of religious accommodations is a form of disparate treatment, the Court’s ruling made clear that there should be no dispute in future litigation that compensatory and punitive damages are available for claims of denial of religious accommodations.

UPDATED GUIDANCE ON PREGNANCY DISCRIMINATION AND RELATED ISSUES PUBLISHED ON JUNE 25TH, 2015

 Fundamental PDA Requirements  1) An employer may not discriminate against an employee on the basis of pregnancy, childbirth or related medical conditions; and  2) Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.  Extent of PDA Coverage  Current Pregnancy  Past Pregnancy  Potential or Intended Pregnancy  Medical Conditions Related to Pregnancy or Childbirth

1.15 GUIDANCE SUMMARY

 Describes to whom the PDA applies, the ways in which violations of the PDA can be demonstrated, and the PDA requirement that pregnant worker be treated the same as non-pregnant workers (with particular emphasis on light duty and leave policies).  Discuss ADA’s expanded definition of “disability” on pregnancy related impairments and possible reasonable accommodation.  Other legal requirements not related to the PDA and ADA that affect pregnant workers.  Best Practices for employers.

EEOC STRATEGIC ENFORCEMENT PLAN (“SEP”) FY 2013-2016

1.Eliminating Barriers in Recruitment and Hiring 2.Protecting Immigrant, Migrant and Other Vulnerable Workers 3.Addressing Emerging and Developing Issues 4.Enforcing Equal Pay Laws 5.Preserving Access to the Legal System 6.Preventing Harassment Through Systemic Enforcement and Targeted Outreach

SEP PRIORITY #1:

 Eliminating barriers in employment. The EEOC will target class based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women and people with disabilities.

 EEOC v. Darden (S.D. Fla.)  Nationwide pattern and practice of age discrimination in hiring at Season 52 restaurants, filed on February 12, 2015.

1.16 SEP PRIORITY #5: PRESERVING ACCESS TO THE LEGAL SYSTEM

 “The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts.”

 E.E.O.C. v. Doherty Enterprises, LLC. (S.D. Fla.) filed on September 19, 2014.

“… I and Doherty Enterprises both agree that any claim, dispute, and/or controversy (including but not limited to any claims of employment discrimination, harassment, and/or retaliation under Title VII and all other applicable federal, state, or local statute, regulation or common law doctrine) which would otherwise require or allow resort to any court or other governmental dispute resolution forum between myself and Doherty Enterprises (and/or its parents, subsidiaries, affiliates, owners, directors, officers, managers, employees, agents, and parties affiliated with its employee benefit and health plans) arising from, related to, or having any relationship or connection whatsoever with my seeking employment with, employment by, or other association with Doherty Enterprises, whether based on tort, contract, statutory, or equitable law, or otherwise, (with the sole exception of claims arising under the National Labor Relations Act which are brought before the National Labor Relations Board, claims for medical and disability benefits under applicable state and/or local law) shall be submitted to and determined exclusively by binding arbitration….”

SEP PRIORITY #3: ADDRESSING EMERGING AND DEVELOPING ISSUES

 “The EEOC will target emerging issues in equal employment law, including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations.”

1.17 EMERGING ISSUES INCLUDE:

 ADA reasonable accommodations  Leave, teleworking, reassignment to a vacant position for which employee is qualified.  ADA protections for pregnant workers with certain types of medical conditions.  LGBT rights under Title VII.

EEOC FINDS SEXUAL ORIENTATION DISCRIMINATION PROHIBITED BY TITLE VII

 On July 15, 2015, the EEOC held that an employee alleging discrimination based on sexual orientation states a viable claim under Title VII of the CRA of 1964  The EEOC found:  Discrimination based on sexual orientation is necessarily “based on” sex because orientation “as a concept” cannot be defined or understood without reference to sex and is therefore inescapably linked to sex  Citing numerous federal cases that orientation discrimination constitutes “sex stereotyping” and employers cannot take adverse employment actions based on their expectations of how a woman or man should act; and  That orientation discrimination may constitute “associational discrimination” as it is based on an employee’s romantic association with a member of the same sex. CITE: EEOC DOC 0120133080 (E.E.O.C.), 2015 WL 4397641 Complainant v. Anthony Foxx, Department of Transportation (FAA) Agency (July 15, 2015)

QUESTIONS?

1.18 PREPARING FOR TRIAL: MOTIONS IN LIMINE, JURY INSTRUCTIONS, AND THE PRETRIAL CONFERENCE

Zachary J. Glaser Tampa MOTIONS IN LIMINE AND JURY INSTRUCTIONS IN EMPLOYMENT CASES

Zachary J. Glaser, Esq. Bennett, Jacobs & Adams, P.A. (813) 272-1400

Motions In Limine

When considering the purpose of a motion in limine, some people may assume the word “limine” is related to the word “limit.” However it’s actually from the Latin word “limen” meaning “threshold,” “at first inception,” or “at first opportunity.” See Black's Law Dictionary (10th ed. 2014), in limine; Douglas L. Colbert, The Motion in Limine in Politically Sensitive Cases: Silencing the Defendant at Trial, 39 Stan. L. Rev. 1271, 1327 (1987) (citing, CASSELL'S LATIN DICTIONARY 319 (1957); and ANDERSON'S DICTIONARY OF LAW 530 (1983)). Thus, it is fitting that a motion in limine may be seen as the practitioner’s first opportunity to introduce the judge to the issues and law related to their particular case. Indeed, a motion in limine can be a useful tool to (1) introduce your case and theory to the Court, (2) set up a motion for summary judgment, and (3) hopefully, exclude evidence that allows you to simplify and streamline your case.

Basic Grounds for Motions in Limine

Whether in state court or federal court, the pertinent evidentiary code will provide the underlying basis for a solid motion in limine. Beginning with the most fundamental aspect of evidence admissible at trial, it must be relevant. Pursuant to Federal Rule of Evidence, Rule 401, “Evidence is relevant if it has any tendency to make a fact [of consequence in determining the action] more or less probable than it would be without the evidence.” See Fed. R. Evid. 401. More importantly for a motion in limine is Rule 402, which provides that “irrelevant evidence is not admissible.” Simple enough. Motions in limine should be granted if they seek to exclude irrelevant evidence from trial. However, motions in limine are rarely, if ever, this simple. Most evidence has at least some tendency to make a fact of consequence more or less probable.

That’s where the heavily litigated Rule 403 steps in. Pursuant to Rule 403, the Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: “unfair prejudice, confusing the issues, misleading the jury, undue delay, waste of time or needlessly presenting cumulative evidence.” Rule 403 provides the backdrop for many motions in limine. That is, the evidence has some relevance (probative value), but if the jury hears the evidence, they’d be misled, confused, have their time wasted, or one side would be unfairly prejudiced. Other common evidentiary code bases for motions in limine in the employment law context include Rule 404 (Character Evidence; Crimes Or Other Acts); Rule 407 (Subsequent Remedial Measures); Rule 412 (Sex-Offense Cases: The Victim’s Sexual Behavior Or Predisposition – in sexual harassment cases), and Rule 702 (Testimony By Expert Witnesses).

2.1 SPECIFIC AREAS FOR EMPLOYMENT LAW MOTIONS IN LIMINE

The EEOC/FCHR Determination

For both employees and employers, an EEOC or Florida Commission on Human Rights determination can be a powerful piece of evidence. If admitted, a jury will be told that the federal or state commission tasked with making the same decision they are being be asked to make has already decided the case. For obvious reasons, both sides often seek to exclude the EEOC determination.

A recent case from the Middle District of Florida dealt with this issue. In Williams v. Freedman, the Court reasoned that “[a]lthough ‘the probative value of an EEOC determination ordinarily outweighs any possible prejudice to the defendant in a bench trial, ... there may be some circumstances in which the probative value of an EEOC determination is trumped by the danger of creating unfair prejudice in the minds of a jury.” Williams v. Freedman, No. 3:13-CV-1071-J- 32PDB, 2015 WL 846545, at *1 (M.D. Fla. Feb. 26, 2015) (quoting Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1288 (11th Cir. 2008) (internal quotation omitted)). “Factors relevant in determining whether to admit such a letter include whether: (1) the determination contains legal conclusions in addition to factual content; (2) questions of trustworthiness are raised under Fed.R.Evid. 803(8)(B); and (3) the evidence presents prejudice issues under Fed.R.Evid. 403.” Id. (citing Barfield v. Orange Cnty., 911 F.2d 644, 650 (11th Cir. 1990); Cormack v. N. Broward Hosp. Dist., No. 08-61367-CIV, 2009 WL 2848998, at *3 (S.D. Fla. Aug. 28, 2009).

In Williams, the Court stated:

“the Letter [from the EEOC] states that ‘the Commission finds that the evidence obtained does establish a violation under Title VII.’ After briefly summarizing Plaintiff’s complaint and Defendant’s responses, the Letter then states that ‘I have determined that the evidence obtained during the investigation establishes a violation of Title VII of the Civil Right Act [sic] of 1964 ...’ This last statement is a legal conclusion ….. As the Letter contains legal conclusions on the precise issue to be decided, rather than mere factual findings, it “is likely to confuse a jury into thinking that the decision as to whether discrimination occurred has already been made by a federal agency.”

Id. at *2 (citing Cormack, 2008 WL 2848998, at *1).

As a result, the Court granted the defendant’s Motion in Limine to exclude the EEOC’s determination, finding that the letter’s conclusory legal findings, in conjunction with the cursory nature of its factual justification, threatened the defendant with unfair prejudice. Id.

While generally admissible in bench trials, the liberal admissibility of EEOC determinations does not apply to jury trial situations. Lathem v. Dep’t of Children & Youth Servs., 172 F.3d 786, 791 (11th Cir. 1999). “Instead, the district court must make the admissibility determination on an individual basis, considering the evidence’s probative value and the danger of unfair

2.2 prejudice.” Id. Thus, in arguing for or against admission of an EEOC or FCHR determination, “the relevant factors include whether: (1) the determination contains legal conclusions in addition to factual content; (2) questions of trustworthiness are raised under Fed. R. Evid. 803(8)(B); and (3) the evidence presents prejudice issues under Fed. R. Evid. 403.” Barfield v. Orange Cnty., 911 F.2d 644, 650 (11th Cir. 1990).

While the risk of prejudice in admitting an EEOC or FCHR determination is high, courts have generally admitted factual determinations, but commonly focused on and excluded determinations that include legal conclusions. See Hetherington v. Wal-Mart, Inc., 511 F. App’x 909, 911 (11th Cir. 2013) (“The magistrate also did not abuse his discretion in striking the portion of the EEOC cause determination that provided that Hetherington was a qualifying legal individual with a disability because this was a legal conclusion.”)

Motion in Limine to Exclude Comparator Evidence

“A comparator is an employee ‘similarly situated to the plaintiff in all relevant respects.’ The ‘quantity and quality of the comparator’s misconduct must be nearly identical to prevent courts from second-guessing employers’ reasonable decisions and confusing apples with oranges.’ Misconduct merely ‘similar’ to the misconduct of the disciplined plaintiff is insufficient.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1280 (11th Cir. 2008) (internal citations omitted).

Comparator evidence of similarly situated employees who were not treated as harshly as the Plaintiff can be relevant, admissible, and probative towards proving discrimination and pretext in employment litigation cases. For example, if two employees, one male and one female, both engage in the same misconduct, and have the same supervisor and disciplinary history, they should be treated the same. If, however, only the female employee suffers adverse employment action, evidence of the male employee’s misconduct and the fact he did not suffer any adverse employment action may establish the female employee’s claim.

Recently, in Hughes v. City of Lake City, the City filed a motion in limine “to exclude evidence that other Lake City Police Department Officers engaged in similar or worse misconduct to Hughes and were not similarly disciplined.” Hughes v. City of Lake City, No. 3:12-CV-158-J- 32JBT, 2015 WL 846543, at *3 (M.D. Fla. Feb. 26, 2015). The Court recognized that “[e]vidence that similarly situated employees engaged in similar misconduct and were not similarly treated can provide evidence of pretext in a retaliation case.” Id. (citing Summers v. City of Dothan, Ala., 757 F. Supp. 2d 1184, 1211 (M.D. Ala. 2010). “To provide evidence of pretext, however, a comparator must have been involved in or accused of a nearly identical quantity and quality of misconduct as the plaintiff and have been disciplined in different ways.” Id. (citing Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1279-80 (11th Cir. 2008) (addressing the use of comparator evidence at the pretext stage in a discrimination suit). Since the Plaintiff was unable to establish the comparators he was seeking to admit into evidence were “similarly situated,” the Court found the evidence “irrelevant and unfairly prejudicial.” The City’s motion in limine was granted on this issue.

As such, employers would be well suited to try to exclude evidence of “comparators” who were not truly similarly situated to a plaintiff. At the same time, plaintiffs must do their best to find suitable comparators with similar positions, duties, and misconduct.

2.3

Motions to Exclude “Me Too” Evidence

So called “me too” evidence is evidence from other employees claiming they were treated similarly to the plaintiff. In some cases, the plaintiff may have been unaware of this evidence at the time of the adverse employment action. “Me too” evidence can support the plaintiff’s story that he/she was discriminated against since the same, or similar, discrimination happened to a co- worker.

In 2008, the question of admissibility of “me too” evidence was brought to the United States Supreme Court. See Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 381 (2008). In Mendelsohn, the Plaintiff brought an action against her former employer under the Age Discrimination in Employment Act (“ADEA”) and sought to introduce the testimony of five other former employees who claimed they, too, had suffered age discrimination. Mendelsohn, 552 U.S. at 381. None of the five witnesses worked in the same division or worked under the same supervisors as Ms. Mendelsohn. Id.at 382. Sprint, of course, moved in limine to exclude the “me too” testimony, arguing it was irrelevant or inadmissible under Rule 403, Federal Rules of Evidence. Id. The District Court granted the motion in limine and excluded any “me too” evidence from non-similarly situated employees (in the Court’s view, only those with the same supervisor were similarly situated). Id. at 383. The Court of Appeals for the Tenth Circuit considered the District Court’s ruling a per se rule that evidence from employees with other supervisors is irrelevant in ADEA cases. Id. The Tenth Circuit determined that a per se rule was inappropriate, the “me too” evidence was admissible, and then remanded the case for a new trial. Id.

The United States Supreme Court granted certiorari “to determine whether, in an employment discrimination action, the Federal Rules of Evidence require admission of testimony by non- parties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff.” Id. Those looking for clarity from the Supreme Court on this issue were disappointed. The Supreme Court held, predictably and correctly, that there can be no per se rule that “me too” evidence is admissible or inadmissible in any discrimination case. “The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context- specific inquiry.” Id. at 388. Thus, the answer to this question, as is the answer to most legal questions, remains: “it depends.”

More recently, the Eleventh Circuit followed a similar reasoning to the District Court in Mendehlson. In Jackson v. United Parcel Serv., Inc., the Plaintiff alleged gender discrimination and retaliation against her employer, United Parcel Service, Inc., (“UPS”) for denying her a promotion. Jackson v. United Parcel Serv., Inc., 593 F. App’x 871 (11th Cir. 2014). After the District Court granted summary judgment, Ms. Jackson appealed, arguing, inter alia, the District Court erred in not considering evidence of discrimination aimed at her co-workers as evidence of UPS’s intent to discriminate. Id. at 877. The Eleventh Circuit, analyzing the evidence under Fed. R. Evid. 404(b), ruled the “me too” evidence was properly excluded as it had no bearing on

2.4 the decision-maker’s motive, intent, or knowledge. Id. Importantly, the proffered “me too” evidence was directed at a different supervisor than the decision-maker, a supervisor against whom Ms. Jackson’s claims were barred. Id. As such, the “me too” evidence was properly excluded.

Similarly, returning to Hughes v. City of Lake City, Mr. Hughes brought race discrimination and retaliation claims against the City of Lake City, Florida. See Hughes, 2015 WL 846543 (M.D. Fla. Feb. 26, 2015). The City was granted summary judgment on Mr. Hughes’ discrimination claim, leaving only his retaliation claim for trial. Id.at 1. Prior to trial, the City filed a motion in limine to exclude “evidence of discrimination against others.” Id. at 2. Mr. Hughes sought to offer evidence of the City’s discrimination against other employees to show that the City’s reason for disciplining him was pretextual. Id. The United States District Court for the Middle District of Florida stated, in line with the Mendelsohn ruling, “[i]n the absence of any blanket rule, the Court must distinguish between the different sorts of discrimination evidence Hughes may wish to present.” Id. The Court ultimately found that “[e]vidence that [the decision-maker] took adverse action against other employees after they complained about racial discrimination may be relevant to whether she had a retaliatory intent in taking action against Hughes. However, evidence of discrimination perpetrated by anyone other than … the decision-maker, is irrelevant.” Thus, while there is no per se rule regarding “me too” evidence, it appears the Eleventh Circuit is leaning towards a rule that evidence of discrimination against others by the decision-maker is likely admissible, but evidence of discrimination by anyone other than the decision-maker may not be.

Preservation of Issue for Appeal

Say the court has ruled on the parties’ motions in limine, denying one of your motions and granting one of the opposing party’s motions. How do you preserve the issue for appellate review? Rule 103, Federal Rules of Evidence provides, in pertinent part, as follows:

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record--either before or at trial--a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

2.5 Thus, pursuant to Rule 103(a)(1), Federal Rules of Evidence, in order to preserve an objection to admitted evidence, the party must object to the admission of evidence and state the specific grounds for the objection on the record. This highlights the importance of a well-written motion in limine. Once you’ve lost your brilliantly-written and eloquently-argued motion and the prejudicial evidence is offered at trial, it may be as simple as reiterating the grounds for exclusion set forth in the motion in limine in order to preserve all of your arguments for appeal.

The trickier preservation issue usually comes when the court has excluded your evidence. Pursuant to Federal Rule of Evidence, Rule 103(a)(2), in order to preserve the erroneous exclusion of evidence for appeal, you must be sure the evidence at issue is sufficiently set forth on the record so the appellate court knows exactly what was excluded. This may require a proffer of evidence into the record outside the presence of the jury.

For example, the Eleventh Circuit recently dealt with this issue arising out of the exclusion of “me too” evidence in King v. Volunteers of Am., No. 14-12544, 2015 WL 3604352, at *4-5 (11th Cir. June 10, 2015). At the trial in King, the district court granted judgment as a matter of law. Id. at *1. On appeal, Ms. King challenged the district court’s exclusion, or limiting, of four witnesses. Id. at *4. “To reverse the district court’s evidentiary rulings, Ms. King must show that she (1) adequately preserved her claims or that the district court’s ruling was plain error, (2) the district court abused its discretion in interpreting or applying an evidentiary rule, and (3) the district court’s error affected a substantial right.” Id. (quoting United States v. Stephens, 365 F.3d 967, 974 (11th Cir. 2004)) (internal quotation marks, citations, and alteration omitted). “To adequately preserve her objections, Ms. King must have ‘inform[ed] the court of [the evidence’s] substance by an offer of proof, unless the substance was apparent.’” Id. at *5 (citing Fed. R. Evid. 103(a)(2); and United States v. Stephens, 365 F.3d 967, 974 (11th Cir. 2004)). The Eleventh Circuit ultimately found Ms. King failed to show the district court abused its discretion. However, the Court made it clear that not only did Ms. King most likely fail to preserve her objections for appeal, but the failure to clearly identify the proposed testimony erroneously excluded made it nearly impossible to find an abuse of discretion. Id. at *4-5. Specifically, the Eleventh Circuit stated:

Even if we assume that Ms. King adequately preserved her objections regarding the exclusion of witnesses’ testimony, she has failed to show that the district court’s rulings were an abuse of discretion. She has not directed us to any proposed testimony that convinces us that the district court made a clear error in judgment or applied the wrong legal standard. Instead, Ms. King argues that the district court was imprecise in its exclusions and failed to explain its rulings. We disagree. In fact, the district court was quite clear in its evidentiary rulings, and it is Ms. King who has failed to adequately identify any testimony that was improperly excluded.

When asked at oral argument, Ms. King’s attorney struggled to identify record evidence about what proposed testimony each witness should have been able to give on Ms. King’s behalf.

2.6 Id. For example, Ms. King wanted one witness to testify about “numerous occasions when there was racial harassment in the workplace.” This proffered testimony was too vague for the court to find any abuse of discretion. The lesson here is that in order to preserve the issue of excluded evidence for a meaningful appeal, be sure the record clearly reflects the precise evidence and/or testimony that was excluded.

Pursuant to Rule 103(b), Federal Rules of Evidence, however, when the “court rules definitively on the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” The Eleventh Circuit has held that a party can properly preserve its objection to a district court’s exclusion of evidence based on pre-trial motions in certain circumstances. See, e.g., Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1349-50 (11th Cir. 2007). Importantly, if the Court is sufficiently informed of the proffered evidence as required by Rule 103(a), “[o]nce the court makes a definitive ruling excluding the evidence, a party need not renew its objection or offer of evidence to preserve the issue on appeal.” Proctor, 494 F.3d at 1350. In Proctor, the party objecting to the potential exclusion of certain evidence “objected and proffered forty-one pages of deposition testimony and two affidavits from seven fact witnesses relating” to the evidence. Id. The district court granted the opposing party’s motion in limine, and the Eleventh Circuit found that the objecting party had properly preserved its objection. See id. at 1349-50. As such, when faced with an adverse ruling on a motion in limine, it is imperative to (1) ensure excluded evidence is sufficiently identified in the record for the appellate court; (2) determine whether the court’s ruling is “definitive”; and (3) make sure the grounds for your objections to admitted evidence are sufficiently stated in the record.

JURY INSTRUCTIONS

Few documents have a more critical impact on a trial than jury instructions. Jury instructions present the legal roadmap for the jurors to follow while deliberating the case. In many cases, the jurors are provided with a copy of the instructions to take with them during deliberations. Employment law cases have substantial pattern jury instructions in the Eleventh Circuit, spanning roughly 300 pages. As such, while there is often certain wordsmithing done to the proposed jury instructions, they are often fact-specific and a trial court’s use of the pattern instruction will almost never lead to a reversible error. The Eleventh Circuit applies a deferential standard of review to a district court’s jury instructions. Green v. U.S. Steel Corp., 550 F. App’x 773, 775 (11th Cir. 2013), cert. denied, 135 S. Ct. 82, 190 L. Ed. 2d 36 (2014) (FMLA pattern instructions used) (citing Eskra v. Provident Life & Accident Ins. Co., 125 F.3d 1406, 1415 (11th Cir. 1997). “If the instructions accurately reflect the law, the trial judge is given wide discretion as to the style and wording employed in the instruction.” Id. “When the instructions, taken together, properly express the law applicable to the case, there is no error even though an isolated clause may be inaccurate, ambiguous, incomplete or otherwise subject to criticism.” Id. (citing Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1283 (11th Cir. 2008).

Employment cases in state court will often follow the Eleventh Circuit’s pattern instructions. However, in 2012, Florida’s Supreme Court authorized for publication and use Florida’s “Unlawful Retaliation” jury instruction. See In re: STANDARD JURY INSTRUCTIONS IN CIVIL CASES – REPORT NO. 2011-01 (UNLAWFUL RETALIATION), 93 So. 3d 106 (Fla. 2012). The “Unlawful Retaliation” instructions are based upon Fla. Stat. § 448.101-105

2.7 (Florida’s private sector whistle-blower provision). Id. at 108. The Eleventh Circuit Pattern Jury Instructions include instructions for retaliation claims under the Family and Medical Leave Act, USERRA, 42 U.S.C. § 1981 and Title VII. Thus, these instructions will continue to govern their specific actions; however, there is a considerable divide with regard to whether the plaintiff in a private sector whistleblower action must establish an actual violation of a law, rule, or regulation, despite Florida’s new unlawful retaliation instruction.

The pertinent instruction is Instruction 415.5, which provides:

415.5 PROTECTED ACTIVITY

Protected activity is:

[disclosing] [or] [threatening to disclose] to (appropriate governmental agency), under oath, in writing, an activity, policy or practice of (defendant) that violated (describe law, rule or regulation)] [or]

[providing information to] [or] [testifying before] (appropriate governmental agency, person or entity), which was conducting an [investigation,] [hearing] [or] [inquiry] into an alleged violation of (describe law, rule or regulation) by (defendant)] [or]

[objecting to (defendant’s) activity, policy, or practice that violated (describe law, rule, or regulation)] [or] [refusing to participate in (defendant’s) activity, policy or practice that violated (describe law, rule, or regulation)] [or] [would have violated] (describe law, rule or regulation), had (plaintiff) participated.]

See Unlawful Retaliation 93 So. 3d at 110.

Importantly, the “Notes on Use for 415.5 provides:

“[a]s to whether, under F.S. 448.102(3), a claimant must prove an actual violation of law as opposed to a reasonable, good faith belief that a violation of law has occurred, all three federal district courts sitting in Florida have held that the plaintiff must prove an actual violation of law. See, e.g., Paulet v. Farlie, Turner & Co., LLC, 2010 WL 2232662, at *2 (S.D. Fla. June 2, 2010); Smith v. Psychiatric Solutions, Inc., 2009 WL 903624, at *7 (N.D. Fla. Mar. 31, 2009); White v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335, 1336 (M.D. Fla. 2005); but see Padron v. BellSouth Telecomms., Inc., 196 F. Supp. 2d 1250, 1255 (S.D. Fla. 2002) (in dicta, court noted that plaintiff’s reasonable belief that violation of law occurred is sufficient).

Id. However, as a result of a Fourth District Court of Appeal case from 2013, parties in a private whistleblower action may not know if the plaintiff must establish an actual violation of a law, rule, or regulation, or if a good faith belief is sufficient to establish a

2.8 prima facie case of retaliation until the jury instructions are finalized. Specifically, in Aery v. Wallace Lincoln-Mercury, LLC, the Fourth District Court of Appeal found that:

To satisfy the first prong of the above-mentioned standard, Aery was required to show that he “‘objected to or refused to participate in (i) an illegal activity, policy, or practice of an employer, (ii) illegal activity of anyone acting within the legitimate scope of their employment, or (iii) illegal activity of an employee that has been ratified by the employer.’” Pinder v. Bahamasair Holdings Ltd., Inc., 661 F. Supp. 2d 1348, 1351 (S.D. Fla. 2009) (quoting McIntyre v. Delhaize Am., Inc., No. 8:07-cv-2370-T-30TBM, 2009 WL 1039557, at *3 (M.D. Fla. Apr.17, 2009)). In meeting this standard, however, all that is required is that the “employee have a good faith, objectively reasonable belief that h[is] activity is protected by the statute.” Luna v. Walgreen Co., 575 F. Supp. 2d 1326, 1343 (S.D. Fla. 2008).

Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904, 916 (Fla. 4th DCA 2013) (emphasis added). This case has been used to, in this author’s opinion, expand Florida’s private sector whistleblower claims to include a plaintiff’s good faith belief that a violation has or would occur, rather than requiring an actual violation. See Odom v. Citigroup Global Markets, Inc., No. 3:11- cv-75-RS-EMT, 2014 WL 6610069, at *4 (N.D. Fla. Nov. 20, 2014); Hernandez v. Publix Super Markets, Inc., 11 F. Supp. 3d 1177, 1183 (S.D. Fla. 2014); Canalejo v. ADG, LLC, No. 8:14-CV- 17-T-26MAP, 2015 WL 404278, at *5 (M.D. Fla. Jan. 29, 2015); Little v. Hospital Housekeeping Systems, LLC, No. 4:13-cv-00441-RH-CAS (N.D. Fla. May 22, 2014).

The reasoning in the federal cases following Aery is sound. As set forth in Odom, “[w]hen interpreting state law, federal courts must apply the substantive law of the state.” Odom, 2014 WL 6610069, at *4 (citing Erie Railroad v. Tompkins, 304 U.S. 64 (1938)). “Where no Florida Supreme Court precedent exists on a matter, federal courts are bound to adhere to the decisions of the state’s intermediate appellate courts absent some persuasive indication the state’s highest court would decide the issue otherwise.” Id. (citing Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1021 (11th Cir. 2014)). The Court then held:

“Although the Aery court’s reasoning is minimal, and its logic is questionable, it is the only binding statement of authority on the matter from any of the Florida appellate courts. Unless and until another Florida appellate court disagrees with Aery, or there is some other indication that the Florida Supreme Court would change the rule, Aery states the rule on the matter, and I am bound to follow it. I therefore hold that, under the new rule stated in Aery, in claims brought under the Florida Whistleblower Act, Fla. Stat. § 448.102(3), an employee need only demonstrate that he had a “good faith, objectively reasonable belief” that the conduct that the employee objects to is illegal; the conduct does not need to actually violate the law.”

Id. (citing Aery, 118 So. 3d at 916). Thus, despite the Florida Supreme Court’s Standard Jury Instruction on this matter, federal courts applying state law feel bound to follow Aery pursuant to the Erie doctrine.

2.9 Judge Smoak appears correct that Aery’s “logic is questionable.” The language of Fla. Stat. § 448.102 is clear, in that protected activity is disclosing or threatening to disclose ‘to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule or regulation.’” Fla. Stat. § 448.102(1)(2015) (emphasis added). If Florida’s legislature had intended to protect an employee’s “good faith belief” that a violation was occurring, it would not have required that the disclosure be about an “activity, policy or practice of the employer that is in violation of a law, rule or regulation.” Sections 448.102(1) and (3), Florida Statutes, contain the same language mandating that the action “is” in violation of a law rule or regulation. However, Section 448.102(2), Florida Statues, is different in that it allows for an “alleged violation of law, rule or regulation.” This is telling. Section (2) applies to protected employees who provide information to an agency conducting an investigation, not for raising the issue with the agency or employer in the first place. This makes sense because while the Plaintiff’s complaint or objection in sections (1) and (3) must relate to an actual violation, the “alleged” violation being investigated by the agency may not be a violation at all. However, an employee must be protected from retaliation if they provide information to the investigating agency, even if the investigation reveals there was no actual violation. Additionally, the Florida Public Whistleblower Act does not just protect against disclosures or objections to an actual violation, but also protects objection to a “suspected” violation. Fla. Stat. § 112.3187(5). Thus, the Legislature has demonstrated its ability to differentiate between requiring an actual violation of law, rule, or regulation, or merely a good faith basis that an act is a violation. Therefore, it seems the proper construction of the statutes is to require an actual violation in order to establish a prima facie case under Fla. Stat. § 448.102(1) and (3).

As stated in Odom, “unless and until another Florida appellate court disagrees with Aery, … Aery states the rule on the matter, and I am bound to follow it.” Odom, 2014 WL 6610069, at *4. Recently, another Florida appellate court has disagreed with Aery. See Kearns v. Farmer Acquisition Co., 157 So. 3d 458 (Fla. 2d DCA 2015). In Kearns, the Second District Court of Appeal examined Aery as well as Luna v. Walgreen Co., 575 F. Supp. 2d 1326, 1343 (S.D. Fla. 2008), upon which Aery relies, as well as Florida’s Public and Private Whistleblower statutes. Id. at 463-65. While the Court in Kearns noted that a remedial statute like the Whistleblower Act should be liberally construed, the court noted “[t]he first principle of statutory construction is that legislative intent must be determined primarily from the language of the statute.” Id. at 464 (citing Golf Channel v. Jenkins, 752 So. 2d 561, 564 (Fla. 2000)). However, “[w]hen a statute is plain and unambiguous, there is no need for judicial interpretation. Id.

As such, the Court ruled “[b]ased on a plain reading of the FWA and the reasoning in White, we agree with the Employer that under section 448.102(3) Kearns must prove that he objected to an actual violation of law or that he refused to participate in activity that would have been an actual violation of law.” Id. at 465 (citing White v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335 (M.D. Fla. 2005)).

It will be interesting to observe how courts prepare jury instructions in the coming months and years given the conflict between Kearns and Aery. It is the author’s opinion the Kearns ruling is correct. However, there are clearly arguments on both sides, as illustrated by the split of opinions.

2.10 A VIEW FROM THE BENCH: LITIGATING EMPLOYMENT DISCRIMINATION CLAIMS

Moderator: Patrick Martin, Miami

The Honorable Patricia A. Seitz, U.S. District Court for the Southern District of Florida

The Honorable Cecilia M. Altonaga, U.S. District Court for the Southern District of Florida

The Honorable Ursula Ungaro, U.S. District Court for the Southern District of Florida EFFECTIVELY LITIGATING EMPLOYMENT CASES A VIEW FROM THE BENCH Judge Ursula Ungaro Judge Cecilia Altonaga Judge Patricia Seitz

Discovery Discovery strategies in employment cases? • The attorneys should endeavor to meet all deadlines set by the Court and bring up any discovery issues early instead of close to the discovery deadline.

• The attorneys should also endeavor to shape discovery in order to obtain necessary information that will be relevant at the summary judgment stage and at trial.

Pretrial Conferences What are your pet peeves? What common problems/concerns do you see at Pretrial Conferences? Any specific issues that seem to arise in employment law cases? • Attorneys who are not prepared, who have not thought about what is needed to try case - what each witness will testify about and what exhibits will be introduced by which witnesses. • By time of Pretrial Conference, attorney should know all elements of his claims/defenses and how will establish each element.

• Don’t underestimate amount of time needed to try case.

• Attorneys should scrupulously comply with the Court's Pretrial Conference requirements (as stated in the Trial Order), the Local Rules, and Rule 16.

• All discovery motions should have been resolved well in advance of the Pretrial Conference.

• The Pretrial Stipulation should clearly reflect claims and defenses that have been abandoned in the course of the litigation.

• Attorneys should be reasonable and realistic in assessing what facts actually are in dispute and what facts cannot reasonably be disputed.

• Judge Ungaro expects the filing of deposition designations and cross–designations with the Pretrial Stipulation and on the form prescribed by her trial order

3.1 • The attorneys should be mindful of any novel or unusually complex issues that they anticipate to be part of the trial and bring them to the attention of the Court.

• The attorneys should be prepared to articulate a clear and concise damages theory.

• Be prepared to discuss jury charges and verdict form. • The attorneys should have made a serious effort to reach agreement on all jury instructions and should be prepared to argue any and all disputed instructions at the Pretrial conference.

• The attorneys should be prepared to discuss any deviations from the Eleventh Circuit’s Civil Pattern Jury Instructions.

• Be prepared to address admissibility of trial exhibits and objections to exhibits, as well as any objections to deposition designations or witnesses' testimony.

• If you intend to use demonstrative exhibits in your opening statements, show them to opposing counsel and obtain the Court's ruling regarding their use at the pretrial conference. Don't wait until the morning of jury selection/opening statement to address objections to demonstrative exhibits.

Motions for Summary Judgment What are your pet peeves? What common problems/concerns come up with Motions for Summary Judgment in employment cases? • Law is fairly well established in Labor & Employment area so really need to marshal the facts, which must be taken in the light most favorable to non-moving party.

• In employment cases, in particular, parties and their attorneys sometimes get too caught up in the emotion of the situation and fail to apply the law to all the facts; instead, they focus on the emotional facts.

• Most judges do not hold hearings on motions for summary judgment so make all your arguments in the papers.

• Don’t file if there is a clear issue of fact - wastes court’s and parties’ time and resources.

• String cites are not helpful, especially for statements of black letter law.

3.2 • Tell the court why cited cases are relevant, factually on point & holding supports your statement.

• Statements of Undisputed/Disputed Facts: • The Statement of Undisputed Facts should be succinct in order to permit opposing counsel to respond directly to the assertions.

• Make sure the statements of undisputed material facts/disputed material facts match each other and are well supported by citations to the record.

• Make sure citations to the record are correct and not taken out of context.

• The attorneys should directly address their opponent’s arguments and the applicability of the cases cited by opposing counsel.

• If you are including exhibits, provide the Court with an index that does not simply identify the exhibits by number or letter, but which describes the exhibit with words, which makes it easier for the Court to locate relevant exhibits during its review of the motion.

Motions in Limine What have you seen that works well/doesn't work well? Is it helpful to have legal issues briefed before hand, or are you getting too many motions in limine on issues that cannot be resolved pre-trial? • Motions in limine should be used to exclude specific evidence, which is set out in motion; not for exclusion of broad types of evidence (i.e., all evidence related to damages).

• Do not include boilerplate requests in your motion, unsupported by any analysis.

• Do not include requests to exclude evidence that you have not conferred with opposing counsel about in an effort to reach agreement.

• Motions in limine are not a substitute for summary judgment.

• A motion in limine is not the time to raise a Daubert challenge to an expert.

• A motion in limine is not your chance to raise a discovery matter that was not addressed timely.

3.3 Jury Instructions What is your position on deviations from the Pattern Instructions? What is helpful/not helpful to the Court? • Deviations from Pattern Instructions are acceptable to aid clarity and to tailor instruction to specific facts of case.

• If you deviate from Pattern Instructions provide case law to support your changes.

• Parties should look at instructions early in case because can be used as a guide in discovery and putting together the case.

• Parties should work together to formulate jury instructions.

Trial Briefs Does the Court find trial briefs helpful in a Jury Trial? •Seldom necessary

Voir Dire Have you seen effective voir dire strategies? • Effective strategies try to elicit information that gives you an idea of jurors’ perspectives on your client’s circumstances.

• One effective strategy is to raise the emotional negatives of your case to gauge potential jurors’ reactions and to give you a chance to diffuse the negative with additional questions.

Trial Strategies Good, bad, and ugly trial strategies in employment cases (or more generally in your civil litigation)? (effective/ineffective openings or closings; effective trial themes; effective presentation of damages) • In your opening, be careful not to promise more than can deliver.

• Closings should tie all the evidence together; show jury how testimony and exhibits fit together to support claims/defenses.

• Defendants often fail to adequately address Plaintiff’s damages evidence. • Don’t effectively challenge damages evidence.

• Don’t offer alternatives to Plaintiff’s damages amounts.

• Prepare your witnesses to maintain appropriate courtroom demeanor. (You should anticipate that questions can and may be intended to illicit strong emotional reactions.)

3.4 • Defense counsel must have an answer to Plaintiff’s theory of the case. In preparing an answer, defense counsel must ask the following questions: (i) does the plaintiff’s theory contradict the discovery?; (ii) is the theory no more than speculation?; and (iii) does the theory comport with the experience of employees comparable to the plaintiff?

• The attorneys must exhibit a calm demeanor and be able to address the evidence objectively. The attorneys should also be flexible and if their theories of the case are not working during trial, must be able to quickly adapt to the changed circumstances.

• Defense exhibits should include all documents that support the defense counsel's theory of the case and the underlying elements of any affirmative defenses. Similarly, plaintiff’s exhibits should include all documents that support plaintiff’s counsel's theory of the case and the underlying elements of plaintiff's claim or claims.

• The single most important asset of a trial attorney is credibility. Attorneys should keep in mind that once a juror forms the impression that the attorney has cut corners or has not been entirely truthful, the chance of obtaining a favorable verdict drastically decreases.

• During direct and cross-examination, attorneys should ask short questions and should endeavor to do so in a chronological manner because the pace of the examination is critical.

Post Trial Motions What is helpful/unhelpful to the Court in Post-Trial Motions? • If you file a post-trial motion, you should always file the transcripts and cite directly to the relevant portions.

• Rarely successful.

• Those that are successful usually focus thoroughly on only one or two issues and clearly set out how applicable standard (for new trial, for judgment not withstanding the verdict, etc.) applies.

Any other issues Any other concerns or issues that you encounter in your employment cases? • Lawyers are both counselors and advocates. • Because of high emotion of employment cases, many lawyers forget their role as an advocate, which often requires a more neutral view and helping client see other side’s perspective. • For Plaintiffs may require finding out what Plaintiff really wants and needs and giving Plaintiff an accurate assessment of his/her case.

• For Defendants may require looking at client’s employment practices to see what went wrong and suggesting corrections or improvements.

• Sometimes there are more effective ways to resolve issues than to try the case.

3.5 •Practical Issues: • Think ahead before asking for extensions of time or page limits; don’t file motion for extension at 7 pm on the day filing is due.

• Follow Local Rule 7.1 and actually confer before filing most motions.

• Don’t file answers with lots of boiler-plate defenses. • Judge Seitz follows line of cases that Iqbal/Twombly apply to pleading defenses.

• Judge Ungaro does not apply this standard, but does require sufficient facts to give “fair notice” of defense.

• If you haven’t tried a case before or in a long time, go watch one before your trial starts.

• If you need a translator, litigants must provide their own in a civil case.

3.6 EFFECTIVE TRIAL THEMES AND TECHNIQUES

David W. Adams, Tampa Ana Consuelo Martinez, Miami

I. EFFECTIVE TRIAL THEMES AND TECHNIQUES

David W. Adams Bennett, Jacobs & Adams, P.A. (813) 272-1400

A. Introduction

This program deals with effective presentation of testimony at trial. Lawyers deal with trial preparation once the court has ruled adversely on the defendant’s motion for summary judgment. In order to make an effective presentation at trial, lawyers must think of the whole picture and how all the pieces of the puzzle fit together. In order to do that, you should focus on six areas.

First – Decide what is persuasive. This will vary depending upon the facts of your case. Jurors come with specific beliefs and attitudes. Your job is to develop a persuasive style of presentation of the evidence so the jury will rule for your client when it retires to deliberate.

Second – Select a theme for your trial. These materials will discuss common plaintiff themes and common defensive themes which you may be able to adopt to your specific factual scenario.

Third – Direct Examination. Develop direct examination of friendly witnesses and calling of direct and adverse witnesses in order to prove your case in chief.

Fourth – Exhibits. Employment relationships are often long-tenured. The use of employment applications, email, performance reviews, and written documents are common in employment trials. You must select the key exhibits and focus on presenting exhibits which persuasively prove your theme.

Fifth – Cross Examination and Re-Direct. After presenting your witnesses and after opposing counsel has presented direct examination, you must develop effective cross-examination. These materials will discuss elements of good cross-examinations.

B. The Art of Persuasion

1. Background. Trials are a re-creation of reality. It is your job to resurrect an event or transaction that happened in the past. When you go to trial, there are usually three versions of reality – (a) your side’s version of the facts, (b) the other side’s version of the facts, and (c) the jury’s version of the facts. At trial, all parties firmly believe their version of the facts is correct, and they try to persuade the jury to accept their version. In the end, the only facts that ultimately matter are the ones accepted by the jury, because those facts will control the jury’s verdict.

4.1 How does one get the jury to accept their version of the facts? This depends largely on which side is more persuasive in presenting its version of the facts. If neither side is persuasive, the jury will construct its own version of the facts. In order to persuade juries, you must understand juror backgrounds, beliefs, and attitudes. You must understand how juries process information – what they think, how they think, and how they make decisions. Only when you understand jury reasoning, can you understand how to persuade the jury to accept your version of the facts as its own.

2. Juror Reasoning. People have two significantly different approaches to decision making. Some people are right-brain decision makers and others are left-brain decision makers. In order to persuade a jury, one must understand which of these two approaches is likely to prevail in the jury room.

a. Right-Brain (Emotional) Reasoning. Right-brain decision makers often share several characteristics. First, they are usually emotional and creative, and are more interested in people than problems. They understand trials as dramas, not legal disputes. Second, they often use deductive reasoning, which can be emotional and impulsive. They use their own premises about how life works and rely on little factual information. They attribute cause and blame quickly. Once they make decisions, they are committed to them, and they validate those decisions by selectively accepting, rejecting, or distorting information to fit their beliefs. This allows them to justify decisions and believe decisions are logical and fair. They harbor an internal need to be consistent and remain committed to their original decisions even when they receive conflicting information. Since inconsistent information causes conflict and stress, they become resistant and soon hear and see only what they want to hear and see.

b. Left-Brain (Cognitive) Reasoning. In contrast to right- brain decision makers, left-brain decision makers like to solve problems and focus less on people as opposed to accumulating information. They frequently defer decisions until they have all available information and act like scientists who use deductive reasoning to reach logical conclusions. Cognitive decision makers are more likely to have higher educational levels in math, science, and business.

For, example, after seeing a collision, a right-brain person might ask, “Was anybody hurt?” while a left-brain person might ask, “Whose fault was it?” Right-brain thinkers “feel”; left-brain thinkers “reason.”

3. The Persuasion Dilemma. While most jurors are right-brain decision makers, most lawyers, trained in legal reasoning, are left-brain decision makers. The approach that might be most effective in persuading a lawyer may not necessarily be the approach most effective in persuading the jurors. In order to effectively present your case, you must understand how jurors process information and make decisions so that you can communicate persuasively with each juror.

4. Juror Beliefs and Attitudes. Beliefs comprise our value system. They are what we generally know about something or what we do not know about

4.2 something. They are how we perceive life and how life works. Attitudes are how we feel about something. They are expressions of our beliefs, convictions, biases, and prejudices about people and events. They encompass our sense of what’s right and what’s wrong, what’s fair and what’s unfair. When people try to make sense of daily events, we use stereotypes – our beliefs and attitudes – to organize our opinions. Beliefs and attitudes are formed throughout our lives by parental training, education, news, television, personal observations, and experiences. Once developed, attitudes are often held for life and change very slowly, if at all, over one’s life.

Attitudes subconsciously allow people to filter information about the world and sort out conflicting information. We use attitudes to fill in missing information. Attitudes are the lenses through which we can “see” information in our own unique way, accepting information we like versus what we dislike. Through our attitudes, we achieve personal consistency and comfort.

Many lawyers believe if they simply present the facts, the jurors will accept them. Wrong. Most jurors do not passively sit and uncritically absorb evidence. Instead, they use beliefs and attitudes to filter information. They rarely have open minds that are receptive to new ideas. They test information and filter whether it is consistent with their preconceived notions.

Instead of patiently listening to the information, jurors can construct stories of what “probably happened” in the case instead of what actually happened. They subconsciously use attitudes to accept, reject, or distort evidence, or to supply missing information. They use attitudes and beliefs to compose a “plausible” story. If they are right-brain jurors, they reach decisions that are consistent with the evidence and ones which they believe are logical and fair. The more familiar jurors are with the subject matter, the more important juror beliefs and attitudes become. This allows them to filter circumstantial evidence and fit it into their preconceived notions.

Juror attitudes can have great significance at trial. They determine if the jurors will be receptive or resistant to the parties’ evidence and themes presented. The attorney will only be persuasive if jurors are willing to accept information or messages properly delivered during trial. Therefore, it is critical that you accept the juror’s relevant attitudes regardless of whether you believe those attitudes are consistent with, or in conflict with, your own. This is normally explored before and during the jury selection process. It is very unlikely you will change the jurors’ attitudes and beliefs about important matters presented during trial, so you better prepare for that issue.

Lawyers rely on juror demographic information such as sex, race, age, marital status, family history, residence information, education, and job history. These demographics sometimes reflect general attitudes about life but have limited use in predicting individual juror attitudes and beliefs. Demographics such as sex, age, and race are not very helpful in predicting juror attitudes unless the case involves issues of sex, race, or age.

4.3 Enter voir dire. One would think direct information about juror attitudes could be elicited from jurors. However, jurors are frequently inaccurate during voir dire and fail to describe in their own attitudes issues relevant to a particular trial. Self- disclosure of true attitudes and beliefs on sensitive issues is frequently unreliable. Jurors have a strong desire to “fit in” and be accepted by others. This impulse usually overrides any obligation to be entirely truthful. As a result, jurors often give socially acceptable answers on attitudes and beliefs instead of their true feelings. Your role in voir dire is to question jurors individually and create a relaxed, non-judgmental environment in order to improve the quality of truthful self-disclosure. Written questionnaires, rather than questions in open court, sometimes improve the candor and completeness of self- disclosure.

Successful lawyers frequently learn about juror attitudes indirectly by asking about personal hobbies, interests, involvements with groups and organizations, and other personal experiences from life in which attitudes may be inferred. If a juror is president of the local NAACP, you might be able to rule out the fact they are a staunch republican. A bird watcher is probably not a huge risk taker. A young person whose hobby is bungee diving may not be quiet, calm, and reflectful. Personal experiences that are similar to the facts being presented are critically important. Jurors consider their own experience to be evidence and frequently spend much time in deliberations discussing their own experiences as it might relate to the case.

In state court, judges are usually more lenient and allow a complete voir dire. On the other hand, in federal court, most lawyers rely on juror questionnaires and questions asked by the judge to learn juror beliefs and attitudes. Armed with this information, you are required to engage in jury selection so you can make “informed” decisions on which jurors to accept and reject in your employment case. Good luck. This system is not fool proof.

5. Juror Decision Making. Jury verdicts involve the collision of two forces: (a) individual decision making and (b) group decision making. As discussed above, individual jurors are influenced primarily by right- or left-brain reasoning and filtered through the juror’s beliefs and attitudes. Jurors also make judgments about lawyers and how they present themselves, their evidence, arguments, and demeanor. Lawyers who understand and respond to jurors’ emotional needs during a trial can have a significant advantage.

a. Individual Decision Making. Juror anxiety is high at the beginning of a trial. Most jurors have never been in a trial and are uncertain as to their role. Uncertainty produces anxiety. The jury selection process is not helpful. It starts with selection of a jury panel. Jurors have no idea what the case is about and are unsure whether they will be asked to serve. If they are asked to serve, they don’t know much about the case and will be unsure about their ability to reach a correct verdict. Most jurors use subconscious strategies to cope with their anxiety.

4.4 Once the trial begins and the jurors hear the opening statement, juror uncertainly and anxiety begin to subside. They learn what the case is about; they have been introduced to the key themes of the case and the principal actors; each side’s story has been presented and, while the stories may be wildly different, they have been presented for the jurors’ consideration. The stories form the mental process by which the jurors begin to make sense of the information you present.

As the trial progresses, jurors get to actually hear and see the evidence. Using the processes described above, jurors subconsciously accept, reject, or distort that evidence, depending on whether the evidence is consistent with their own life experiences. Jurors use their attitudes and beliefs to screen the evidence as they hear and see it. For most jurors, the evidence, as filtered by their beliefs and attitudes, serves to validate the story they have already constructed in their minds. Often jurors use the evidence to prove their initial impressions were correct and they become confident about the outcome of the case. Once the evidence is closed, most jurors are confident and committed to their decisions. They are anxious to share their views with other jurors during deliberation. For those jurors, closing arguments will have little influence since they have already made up their minds.

Closing arguments will influence jurors who are still unsure of their decision or do not have confidence in their decision. It moves people standing on the fence. Closing arguments may also influence jurors who have made decisions but have been instructed under the court’s instructions and must now reassess their views of the case and re-evaluate their decisions.

b. Group Decision Making. Once jurors retire to the jury room to deliberate, they engage in group decision making. For the first time, they may realize that other jurors do not share their own views and decisions and that different people view the case differently. Group dynamics have a strong influence in determining which decisions will prevail and who will speak for the jury as a whole. Importantly, in group decision making, some members have more influence on the group than others. Most members can be categorized into three categories: (a) persuaders, (b) participants, or (c) non-participants.

Persuaders make assertive statements about the evidence, strongly express their opinion, and actively build coalitions to support their views. They are opinion leaders who dominate the discussion. Frequently, they have higher education levels and they hold positions of authority in their work. They are articulate and comfortable in group settings. They express their opinions with ease. Some will have prior jury service. Persuaders often constitute approximately 25% of the group. In a typical eight-person jury, two are persuaders. Jury research has shown these jurors do 50% of the talking.

Participants are persons who also engage in group discussion. However, they are followers, not leaders. They value social approval and acceptance by others. They defer to others who might have stronger egos or education, higher

4.5 intelligence or experience, and greater career success. Participants readily join coalitions since the coalition tends to validate their decision. However, participants are not persuaders. Participants normally constitute approximately 50% of the group. In a typical jury deliberation, four jurors normally will be participants.

Non-participants are those who sit back and listen. They rarely engage in group discussion. Non-participants rarely become involved in deliberations other than to express agreement or disagreement with a particular view or vote. They are followers who go along with what the majority decides to do. One exception is that sometimes non-participants are loners. They can be detached from and avoid involvement. They may exhibit independence and may not be easily swayed by the majority view. They can be stubborn. Non-participants constitute approximately 25% of a group. In a typical jury deliberation, two jurors will be non-participants.

Categorization of potential jurors is important during jury selection. This is where you should use peremptory challenges to eliminate unfavorable persuaders.

6. Persuasive Drivers. How can you influence the jury to accept your version of reality as its own? The answer is communication. This is a process involving senders (witnesses and lawyers), messages (evidence and arguments), media (testimony and exhibits), and receivers (jurors). Preparing the receivers of information (jury) involves receiving, processing, and remembering information. Persuasion will only occur if the messages you intend to send to the jury are the same message the jury actually receives and retains.

Persuasive drivers can influence a jury. In order to persuade the jury, you should focus on seven factors: (1) prepare your case from the jury’s point of view; (2) develop a case theory; (3) use themes and labels; (4) emphasize people; (5) make the case a story; (6) focus on key disputes; and (7) be an excellent advocate. Each of these will be discussed below.

a. Prepare for the jury. The only reality that counts is the jury’s reality. All courtroom communications must be juror-centered. In other words, they must be planned and executed from the juror’s point of view. If it is not persuasive to the jury, it’s not worth presenting. Constantly ask yourself, “What does the jury want to know and how does the jury want to learn it?”

Serving on a jury involves stress and anxiety. You should work to develop strategies that put jurors at ease. This includes helping jurors understand the trial process and what the case is about. Jurors can be emotional and make decisions quickly, based on their own attitudes and beliefs. Most jurors resist changing their minds. Jurors will filter information and subconsciously decide whether to accept, reject, or distort evidence. You must make your witnesses trustworthy, knowledgeable, and thoughtful. You must make the trial vivid. You must be efficient and move the story forward before boredom sets in. Once boredom sets in, jurors tune out.

4.6

Today’s jurors are a product of their environment. They collect daily information, primarily through computers, television, and film. They expect drama, strong personalities, and sophisticated visual effects. They want the information delivered quickly, in simple, digestible sound bites. They want the information to be interesting and enjoyable. They wish to be entertained. Anything less and the jurors will change the proverbial channel and tune out.

b. Develop a case theory. Your case theory is a clear, simple story of “what really happened” from your client’s point of view. Your theme must be consistent with undisputed evidence and make sense of disputed evidence. It not only must show what happened, but also explain why the people in the story acted the way they did. It must be consistent with the jury’s beliefs and attitudes about life and the way the world works. This is particularly true in employment trials, because most, if not all, jurors have held a job in the workplace. Your case theory should be a persuasive story that will be the basis of your arguments throughout trial. If you can’t state your theory of the case in a minute or two, you are in trouble. If you fail to construct a clear, simple story that puts the evidence together in a logical way, the jury will make one for themselves. The jurors’ story may be adverse to your own.

You should develop your theory of the case shortly after you receive it. The theme can be developed while you investigate the facts. If you are defending an employment case and the employee has been terminated, you will need to explain to the jury whether it is a misconduct case or a case that involves poor performance. Misconduct conjures images of all the things you learned you shouldn’t do in kindergarten – lying, cheating, stealing and fighting. Performance, on the other hand, is when an employee attempts to make an effort but is simply not “cutting the mustard.” Performance cases normally involve progressive discipline, counseling, written warnings, and suspension, leading up to termination. You must show the employer acted fairly.

Trials are a contest to see which party’s version of the facts really happened. The parties will normally have competing versions of reality, and each side tries to present a persuasive version of what happened in the workplace.

A great gut check for trial themes is to explain the theme to a child. So long as the child is in grade school, you should be able to explain the theme of your case and see if the child accepts it. Middle schoolers and high schoolers are particularly effective at critiquing a deficient case theme. If they are asking questions, assume the jury will be asking the same questions. You should be able to explain the case in a few sentences, then stop and listen. If a child won’t accept the theme of the case, then you should probably go back to the drawing board.

c. Use themes and labels. Once you have a developed a theory of the case, you have to condense it into themes and labels. Themes summarize your case. They are memorable words or phrases that summarize the essence of your presentation. They project the images you hope the jury will retain. Most cases should

4.7 not have more than two or three themes, which you should repeat throughout the trial. If prudently selected, jurors will adopt your themes as their own and use those themes during deliberations. Good themes are emotional and create memorable images. They state your position on liability and damages and justify the key background in the case. It’s like a game of Clue. Colonel Mustard did it with the candlestick in the living room. They summarize what happened (conduct), who did it (people), and why they did it (motive). They must be consistent with juror beliefs and attitudes. The best themes come from time-honored principles that contain universal truths about life. Single words such as “love,” “hate,” “fear,” “trust,” “honor,” “duty,” “responsibility,” “cowardly behavior,” “greed,” and “revenge” are powerful explanations of human motive. Catch phrases such as “a time bomb waiting to go off” and “desperate times call for desperate measures” create powerful images of an event. Themes such as “being responsible for your actions” and “profits over safety” conjure strong moral images.

Labels are used to convey images. Calling someone “the defendant” conveys a different image than “Mr. Jones” or “Bill.” In this example, the plaintiff will want to use personal and emotional labels. On the other hand, the defendant wants to depersonalize the plaintiff and use bland tones. A good lawyer decides how to label the parties’ witnesses and events to convey the emotional images you want the jury to accept. Those labels should be used consistently throughout the trial and introduced in opening statements, employed during witness examination, and driven home during closing arguments.

d. Emphasize people. Most jurors are people oriented. They want to hear about the people and how they feel. Jurors normally root for the team that wears the “white hat.” They want to feel good about their decision. Jurors can’t decide who wears the white hat unless they get enough information about the people so they can reach a verdict which is consistent with their feelings. Key actors, such as the parties in the case, require jurors to learn a large amount of information about them in order to determine whether they are “good” or “bad” people.

Much like a soap opera, people do things for a reason. Jurors not only want to know what they did, but also why they did it. In other words, they want to know the motivation.

Television media is particularly effective in using this knowledge. Most news stories invariably focus on the human element. These events frequently zoom in on a particular person and tell the event through its effect on that person. When the nightly news publishes a murder story, almost invariably the television cameras are thrust upon the family member of the victim often crying and trying to make sense of the crime. The story is told in a way that puts the audience into the picture, engaging their hearts and minds. This causes viewers to care about the people and what happens to them. In the end, the story’s moral is consistent with the audience’s beliefs and attitudes. The story is told efficiently and is seldom boring. There are often charts and visual aids, and most stories have a villain and a victim.

4.8 e. Make the case a story. Storytelling is a large part of human psychology. It’s the way people have communicated since the beginning of time. Before people could write, storytelling was the method in which information was passed on from generation to generation. People instinctively use storytelling to communicate, and this allows listeners to organize, understand, and remember information. Jurors do the same thing during trial. If the evidence is not organized into a clear, simple story, jurors will create a story of their own. It’s human nature.

Good stories organize, humanize, and dramatize. They should have a plot, characters, and emotions. Most stories have a common theme. Some involve an event (employee termination), a conflict arises (employee resists termination), a crisis is reached (discharged employee accuses employer of unlawful conduct), which culminates in a resolution (employee bringing a whistler blower action). Effective stories use sensory language, vivid images, present tense, pace, and simplicity. This gives life to the story and its characters. The story should engage the jurors’ hearts and minds so that the audience can care what happens to the people presenting evidence. The story’s moral should be consistent with the jurors’ beliefs and attitudes so that the ending of the story is fair and justice is served. The story is told efficiently and moves forward so that it never stalls or become boring.

Unfortunately, trials are more difficult. The story must be intertwined with legal case elements. Nonetheless, all facts must be organized and presented as part of a memorable story. Effective storytelling should be used in opening statements, direct examinations, and closing arguments. Good trial lawyers are good storytellers.

f. Focus on key disputes. In many trials the relevant facts are undisputed. So, the few disputed facts become critical. You must focus on disputed facts, deal candidly with both favorable and unfavorable evidence, and martial and present that evidence so that the jury accepts your version of the disputed facts.

Think about how you can highlight the best fact testimony and exhibits. Humanize them and make them visual. Think about how you can repeat your best fact, yet maintain juror interest. Think hard about how you can minimize the impact of your worst fact. Anticipate your worst facts by forewarning the jury. If key facts and exhibits are disputed because the witnesses remember them differently, think about how you can make your witnesses and exhibits come alive so your opponent’s facts become muted.

Don’t spend time belaboring undisputed facts. This will only bore the jury and make your presentation uneventful. Spend more time finding witnesses and exhibits which support your version of disputed facts and prepare them so they are dynamic, confident, and detailed.

g. Be an excellent advocate. The persuasive drivers above do not happen by themselves. They require an advocate. An advocate exhibits unrelenting

4.9 commitment to a client’s cause and actively seeks to influence jurors by reaching their hearts and minds. Jurors watch the advocate. Always assume the jurors (as well as the judge and opposing counsel) watch your every move and how you treat your trial team. No snickering when something bad happens for the other side.

An advocate serves as both a director and an actor. You direct the presentation of the witnesses, yet when you engage in storytelling (and opening and closing arguments), you are the sole actor. You use choreography in determining the time when witnesses bring out key facts and determining how exhibits are presented to emphasize those key facts.

As an advocate, you must always be credible. You should act professionally and fairly with both the judge and opposing counsel. You must be trustworthy, knowledgeable, and entertaining so the jurors see you as a teacher, helper, and guide. Importantly, you should be yourself so the jurors see you as genuine. Your credibility is as important as the witnesses.

A good advocate can convey a sense of injustice. Jurors subconsciously ask a critical question, “Is the witness saying it because they’ve been paid to say it or are they saying it because they believe it?” Advocates need to project passion and commitment. They must expose the injustice and motivate jurors to decide the case in their favor. See attached article on Juror Perceptions and Trial Strategy in Employment Cases.

C. The Critical Importance of Selecting a Theme.

1. Why Themes Are Important. The development of an employment discrimination claim can be difficult. Difficulty often arises due to the complexity of the case and the emotional attachment of the parties. The facts may be complex and involve events occurring over many years, and may also involve analysis of detailed financial and personal issues which form the basis for the employment decision.

Employment cases are inherently different from other types of cases presented to a jury. In a personal injury case or products liability case, the parties’ lives intersect for a small amount of time, but otherwise they are complete strangers to each other. There is usually one brief transaction or accident which gives rise to potential liability. Commercial cases are also different. In commercial cases, people are generally fighting over money or the right to do or to refrain from performing an activity.

On the other hand, there are many similarities between a wrongful termination matter and a divorce case. Many times the relationships can be long-term and involve deep personal relationships based on trust and support. Employers and employees sometimes have lived together for many years, interacting on a daily basis. Somewhere something has gone wrong, leading to an adverse employment act (a demotion, failure to promote, or termination). These events normally have dramatic economic and emotional consequences. In a divorce, one party is usually “hurt,” and that

4.10 party is normally shocked, confused, angry, and hostile. Divorce attorneys work hard to keep emotions under control during the process of divorce. Similarly, each employment case can also be a tiny drama involving a work divorce. A work divorce must be persuasively explained to a jury in a trial that can last five to ten days.

In light of the complexity of work force divorces, themes are a practical way a party can stay focused on what is important and cause the jury to adopt the strength of the applicant’s case. Plaintiff attorneys normally present simple scenarios involving emotion and/or grief to explain adverse employment acts. A standard defense tactic is to raise issues which complicate the case so jurors lose focus of the strength of the plaintiff’s presentation. Themes help clients. Once the client appreciates the value of a theme, the client is better able to remain focused on the essence of the claim. Establishment of themes helps the jury to deflect clutter caused by defense counsel in the courtroom and assists the jury in arriving at a conclusion which is fair and just for the plaintiff.

Appreciation of human and behavioral dynamics plays well in employment litigation. In a trial, jurors do not think people act out of a sole motivation. Instead, they look for loyalty, ambition, greed, jealousy, animosity, and personality clashes to understand behavior in the workplace. These human motivations are compared and contrasted to objective measures of individual performance and achievement which define success or failure in a particular job. These materials will focus on common plaintiff themes and common defense themes which are helpful in employment litigation.

2. Common Plaintiff Themes. Lawyers are creative. As a result, there are an unlimited number of themes which can be developed and used in employment discrimination litigation. Six themes are standard in employment litigation and can often be tailored to the facts of a particular case. Those themes include: (1) she helped build the company and look what they did to her; (2) good people don’t turn bad overnight; (3) the supervisor from hell; (4) corporations need a lesson in fairness; (5) knowledge is power; and (6) they ruined my life.

a. “She helped build the company and look what they did to her.” This theme is effective when the plaintiff is a long-term employee of a small to medium-size company. These employees normally work with the founder or join the company shortly after it is formed. As the company matures and requires more sophisticated talent, these individuals are terminated as part of an ownership change or reduction in force. It works well in a claim for age discrimination or disability bias when there is a layoff and the employee is discharged to his or her protected status. The best method for this theme is to remind the jury of the long-term accomplishments of the plaintiff. Plaintiff’s counsel then condemns the employer’s decision, which failed to take into account plaintiff’s long-term achievements and contributions to the success of the company.

b. “Good people don’t turn bad overnight.” This theme is common and very effective. It works in most employment discrimination cases.

4.11 Plaintiffs whose personnel file shows they have a long history of bad performance of misconduct make bad plaintiffs. Most plaintiff lawyers shy away from taking these cases.

On the other hand, if the client has an established positive record of written performance evaluations over several years (preferably with different supervisors), this theme works well. Normally, the plaintiff is demoted or discharged if a new supervisor comes in and the supervisor harbors discriminatory animus towards plaintiff. The new supervisor frequently gives the plaintiff negative performance evaluations and feedback, normally within a year to eighteen months. The theme appeals to the jurors’ sense of justice and villainizes the supervisor.

This theme is also helpful where plaintiff has had an excellent work record until she developed a disability, at which point the supervisor seeks to rid the company of the disabled employee by unfairly evaluating performance. Once performance is destroyed, the plaintiff is demoted, terminated, or forced to resign as part of a constructive discharge.

This theme works best when the advocate highlights the achievements of the plaintiff prior to arrival of the new supervisor and/or the existence of the disability. Most jurors believe that good performers don’t become bad performers unless there is a reason. Good advocacy eliminates the obvious external factors, such as substance abuse, divorce, or other changes in the plaintiff’s life. Once these factors are eliminated, the jury will accept the argument that the negative performance of the plaintiff is a function of the discriminatory bias of the supervisor as opposed to actual performance deficiency.

In order to be effective, you will have to take the jury carefully through the performance record of your client. You must be careful; the jury may become bored if you present 15 years of employee performance evaluations. Under this theory, you must persuade the jury that the company prospered as a result of the plaintiff’s efforts and the plaintiff’s behavior didn’t change except due to the bias of a new supervisor or the plaintiff’s development of cancer, heart disease, surgery, or some other disabling disease.

c. “The supervisor from hell.” This is an aggressive technique. The idea is to put the supervisor on trial. The advocate attempts to call plaintiff and co-workers to establish the irrationality, bad behaviors, patterns, and practices of discriminatory employment decisions. The advocate shows that the supervisor is arbitrary, prejudiced, and incompetent. He has somehow managed to unfairly “backdoor” your client’s termination. His behavior has been unjust. The supervisor’s credibility is seriously undermined or his prejudice becomes exposed when he is put on trial. As a result, the jury can be persuaded to reject the supervisor’s purported reasons for taking adverse employment action against the plaintiff because he is unfair and prejudicial.

4.12 This technique has risks. Clever defense counsel can raise the argument that plaintiff’s characterization of the supervisor is a smoke screen to hide plaintiff’s poor performance. Plaintiff’s characterization of the supervisor as a biased person is damaging to the supervisor’s representation and the trial becomes more about vindication of the supervisor than the plaintiff’s quest for justice. Good defense lawyers turn the theme around by suggesting the plaintiff has unfairly characterized the supervisor and is playing games similar to plaintiff’s behavior during her employment. Plaintiffs using this theory can use motions in limine to throw at the defense attorney’s vindication of the supervisor. The motion in limine should argue that vindicating the supervisor is a direct appeal to sympathy and, accordingly, the judge should prevent defense counsel from making the argument. Some judges may hold that you have opened the door for the defense counsel to argue that a defense verdict is necessary to correct the slander you or your client have unfairly dumped on the supervisor’s motivations if you overplay the “supervisor from hell” theme.

d. “Corporations need a lesson in fairness.” Unfairness is critical to this theme. In order for it to work, you must develop facts suggesting that the corporation or its agents were unfair to the plaintiff. You may suggest unfairness in several different ways. First, if a plaintiff is faced with charges of misconduct, it is only fair that they be given a specific and timely statement of the alleged misconduct and a meaningful opportunity to correct it. Corporations often skip over this part of the fairness process and terminate employees for misconduct without presenting the allegations to the employee to collect their side of the story. This often occurs if the corporation is motivated to terminate the employee for discriminatory reasons and has singled out the alleged misconduct as a pretext. The advocate urges that the company rushed to judgment before giving the employee an opportunity to respond or rebut the alleged misconduct. You should argue that this was done in order to camouflage the real reason for the employee’s termination, which was unlawful conduct by the corporation.

This theme also works where the corporation has violated its own policies and procedures. For example, if the employer has a progressive disciplinary system and the employee is discharged for a single event, you could argue the employer failed to follow the progressive discipline policy so long as the event does not involve severe misconduct. This theme works well in discrimination cases where the plaintiff asserts disparate treatment on the basis of a protected class. The theme of corporate unfairness works well where the employer has acted contrary to its own policy.

This theme also works where there has been unethical corporate behavior. This technique works well if a plaintiff’s attorney is lucky enough to find cases where performance evaluations have been changed in order to gerrymander the plaintiff (and potentially others in a protected class) to be selected for layoff or other adverse employment action. It can be devastating to the employer’s defense if this type of evidence can be developed as a pattern and practice involving a large number of laid-off employees.

4.13 e. “Knowledge is power.” This theme works well in sexual harassment claims or other claims based on a hostile work environment. Generally, you establish that management has the power to prevent injury to the plaintiff based on its knowledge that the plaintiff was being harassed by his or her co-workers, but the company failed to take prompt remedial action. You establish that the employer was aware of the harasser’s conduct because of previous complaints and should have foreseen that the harasser would injure the plaintiff. Due to the failure to take action, plaintiff has been injured.

Look for complaints about bias or harassment when management fails to take action. Once the complaint is made, management should be alert to make sure plaintiff is not a victim of retaliation. Often-criticized supervisors take out their frustrations in order to teach the plaintiff a lesson. After a complaint, adverse action by the criticized supervisor should trigger a detailed investigation by management. Management is responsible to make sure there is not a retaliatory motive for the action. Failure to take a close review of the retaliatory conduct results in the jurors condemning management for its failure.

When management fails to take any action or fails to take appropriate action, plaintiff can make a compelling argument that management tolerated or even acquiesced to the harassment and encouraged the supervisor to take retaliatory action.

f. “The company ruined my life.” This technique cannot be used in all cases. It is most compelling when plaintiff alleges a serious psychiatric or psychological disability resulting from workplace injury. Good plaintiff counsel portrays the plaintiff as a victim of corporate harassment, discrimination, abuse, and mismanagement. It can be used with an “eggshell” plaintiff.

Similar to the “supervisor from hell” scenario, the plaintiff can overplay this theme. Plaintiff’s counsel must be careful to ensure there is no preexisting psychiatric injury or make sure the defense cannot raise credible allegations of malingering or manipulation by the plaintiff. If so, the theme can backfire. Overstating a damage claim to a jury can be fatal. If you elect this theory, anticipate ways the defense attorney can make it appear the plaintiff is ruining the life of the defendant with false and exaggerated claims if you elect this theory. This theme is powerful in the right case, but can backfire where the plaintiff has preexisting psychological injury.

3. Common Defense Themes. A good defense theme may not necessarily be a good summary judgment theme. Prior to trial, most defense lawyers file a motion for summary judgment. You are forced to defend your client at trial if the summary judgment motion is denied. Arguments about burden shifting, burdens of persuasion, and burdens of proof are fine fodder in motions for summary judgment but do absolutely nothing for a jury. Jurors don’t talk about whether the employer’s stated reasons are pretext. Instead, the jurors are going to decide who should win. They normally reach that verdict by deciding whether the employer wrongfully took some

4.14 wrongful action against the plaintiff or whether the plaintiff got what she deserved. The employer’s stated reason for taking adverse employment action must be clearly and convincingly articulated. The jury may require the employer to prove just cause for the adverse employment action. As a defense lawyer, you must be prepared to prove not only that your client was right – but also fair. Most juries equate unfairness with discriminatory intent in a discrimination case.

Selection of the theme is the single most important aspect of trial preparation. The theme is the single message you must deliver to the jury at each and every stage of the proceeding. A good theme incorporates not only what happened but why it happened. For example, a theme that “the plaintiff was a poor performer” is not a good theme. It only provides what happened, but not why. Each employment drama is different. You must present a theme that is the correct legal – as well as moral – result.

Employment relationships are usually enduring. It’s hard to cram three to five years of workplace behavior into a one-week trial. Ignore the annual average employment evaluation and focus on the ones which highlight poor workplace performance. Try to streamline the case in order to highlight the critical facts supporting the employment action. As a defense lawyer, it is often helpful to find exhibits that graphically illustrate the employee’s character. If the plaintiff has a bad habit of cussing, typing emails in capital letters, or other rude workplace behavior, these items help the jury to understand why the employer had legitimate reasons for criticizing the employee.

Below are common defense themes which might be adapted for your case.

1. Fault Themes. American society is obsessed with determining fault. Jurors like to blame a single person for bad acts. If the facts support blaming the plaintiff for his own predicament, build your theme around the plaintiff’s responsibility. Blame can be established in a number of ways. For example, the following fault themes can be used:

• Selfishness. The employee was only looking out for herself. She failed to care about her co-workers (also substitute the company or customers). • Stubbornness. The employee refused to change. Despite counseling and written warnings, the employee continued to do it “her way” no matter how many times the manager told her to change. • Loyalty. The plaintiff was not loyal to her co-workers or the company. She was not a team player. She treats customers poorly. • Pride. The employee was ungrateful in accepting a demotion instead of being fired for clear misconduct. • Anger. The plaintiff could not control her emotions. She became angry at anyone who suggested improvement. • Revenge. Considering the way the plaintiff treated others, she got what she deserved (termination).

4.15

The above themes give the jury an opportunity to blame the plaintiff for what happened.

2. The Anti-Communication Theme. Many adverse employment actions result in a failure of the employee and the company to communicate. A good defense theme shows the company tried to communicate with the worker, but the worker would simply not listen or refuse to communicate back. Examples of communication themes are as follows:

• If she’d told us she had cancer, we could have helped her. We tried to explain what she was doing wrong, but she would never respond. • We gave her deadlines, but she never met them nor told us why the work was not done. • We gave her the FMLA paperwork, but she never returned it or asked for an extension.

3. No-fault Themes. There are times when the plaintiff is likeable or, alternatively, she is not lying and it is difficult to impeach her credibility. If you can’t blame the plaintiff, you should focus on blaming other events or a third party. This is true, especially when there is a reduction in force or a termination for financial reasons. Similar to responsibility themes, a company must be responsible for its actions. Therefore, if you are going to blame an outside force, make sure you emphasize to the jury, “why” it is appropriate to blame the outside force for the plaintiff’s predicament. For example, the plaintiff was an administrative assistant in the Demolition Department, and we closed that division.

4. Misconduct Themes. Some terminations are simply the result of intentional misconduct by the plaintiff. The plaintiff has been put on notice as to appropriate conduct (through an employee handbook or otherwise), and they simply violate the rules. In these cases, the defense should spent a lot of time showing that the plaintiff was put on notice as to the rule, received a copy of the rule, was trained on the rule, yet, despite all this, the plaintiff failed to follow the rule.

5. No-Call, No-Show Theme. Sometimes employees simply fail to come to work during their appointed times. Most companies have a rule that if the employee fails to arrive at work without notice three times in a row, they are guilty of no- call, no show. This theme does not require much proof. Most employers have similar rules and most people who serve on juries understand it is the plaintiff’s responsibility to call prior to failing to show up for work.

6. The Memorable Catch Phrase Theme. This theory allows you to articulate the theme in a memorable catch phrase, which you normally can obtain from a caustic email or candid comment from a performance evaluation. The catch phrase should be repeated many times during the trial and the defense should find

4.16 other anecdotal evidence which is consistent with the catch phrase. For example, if you adopt the “fail to communicate” theme, perhaps one of the plaintiff’s emails says, “If you shut up and leave me alone, I can get my work done.” In this case, the term “shut up” helps to highlight the plaintiff’s refusal to communicate, thereby justifying the adverse employment action. The catch phrase theme can build a formidable foundation if co- workers, customers, or the work community also believe that the catch phrase is representative of the plaintiff. Not all jurors will have served in a management role; therefore, they cannot always relate to the frustrations of a manager who deals with an incompetent employee. However, all jurors have been frustrated by an incompetent employee as a consumer. Nearly everyone has been confronted with a bureaucratic employee who believed following nonsensical rules is more important than helping the customer solve his problem.

7. Building a Foundation Theme. Many themes start with a premise and then build a foundation. For example, your first defense witness might be the manager who terminated the employee. That manager might identify four or five key weaknesses in the plaintiff’s character or performance. The foundation can then be built on that testimony by calling co-workers who have also witnessed the same character flaws. If appropriate, a customer may also be able to help build the foundation. The foundation is usually complete with the last witness. This is the person who will leave a strong impression on the jury. Often, this might be a witness who was not the principal decision maker but rather someone the employer designates to review the fairness of the adverse employment action. A strong HR representative can play this role well. Additionally, if the manager had to obtain a superintendent authority to discharge the plaintiff, this might be a good final witness.

Once your theme is presented, the jury should be able to understand the decision making, what the company did to the plaintiff, and, most importantly, why. The employer must be more than right, the employer must be fair. Regardless of the jury instructions, jurors often analyze whether the employee was treated fairly. The theme should highlight the personality characteristics of the plaintiff and how those characteristics resulted in adverse employment action. When you are done, your theme should encompass the who, the what, the where, and the why. All of these should be interwoven to create a just result – i.e., the plaintiff got what he deserved.

D. Direct Examination

1. Overview. Most cases are (a) won by presentation of the lawyer’s case in chief as opposed to (b) exposing the weaknesses of their opponent’s case. Consequently, direct examinations must be forceful and efficient to present the facts which will cause you to win.

Direct examination is your opportunity to prove to the jury your version of the facts. Your witnesses get to show the jury what happened so the event is effectively recreated. This must be done while you also prove the elements of your claims or defenses, the theory of your case, and your themes and labels. Effective direct

4.17 examination requires planning and witness preparation. If it is done well, each of the jurors will understand, accept, and remember the testimony. Witness credibility is determined by the identity of the witness (background), what he said (content), and how he said it (demeanor).

2. Effective Examination Characteristics. A good direct examiner is similar to a director of a film crew. Although limited by a script, good directors inject their own approach and perspective into the movie. They use many variables to work with the event, including camera angle, types of lenses, close ups, slow motion, and the like. The director has put his own perspective on the movie to make it entertaining when it is completed.

Good employment lawyers approach witness testimony the same way. They do much more than just “get the story out.” Instead, they decide the time, presentation, pace, and content of the testimony. Unimportant matters are avoided or glossed over. Important ones are stressed and good lawyers zoom in on key facts in the case. Action can be slowed down, and critical items can be shown in slow motion, frame by frame. Direct examination is a creative art which allows you to tell the story to a jury in a way that advantages your client. The tools for creative direct examinations are analyzed below.

a. Keep it simple. Inexperienced labor and employment lawyers often make two mistakes: First, they elicit too much unimportant testimony. Second, they spend too little time on the testimony that drives the case. Mistake number one can result in the jury getting bored or getting confused about what is important. Mistake number two allows the jury to skip over the key facts in the case, instead of allowing them to fully develop the critical facts.

You know your case inside and out by the time you are preparing for trial. You know every nuance, and you know every weakness. Contrast this with a jury who knows very little about your case. They are hearing the testimony for the first time. They are receiving the information by ear. Attention spans drop significantly after the first fifteen or twenty minutes, so any examination should be short and focused. Determine the critical part of the witness’s testimony and get to it quickly. Develop the key facts slowly and sufficiently and get the witness off the stand. This is a classic case of less is better.

b. Organize effectively. Once you have determined the content of direct examination, you must place it in a logical order. Usually, but not always, you might present the testimony chronologically. Most people understand things in time order.

In a plaintiff’s employment action, a logical and frequently used sequence is as follows: (1) personal background; (2) position; (3) action which caused the wrongful acts; (4) management’s response; (5) exhibits to highlight and repeat; and (6) damages.

4.18

Presenting the most dramatic or important testimony early is critical. The jury is most alert and their retentive powers are best. Therefore, describe the action items first and then bring out key points of the action.

c. Start with introductory questions. Since most jurors know absolutely nothing about the witness presented, you should ask each witness introductory questions to let the jurors know what to expect. For example:

Q: Mr. Johnson, were you the plaintiff’s supervisor? A: Yes. Q: When did you begin supervising the plaintiff? A: Two years ago when she began work. Q: I’m going to ask you some questions about the plaintiff’s work performance over the past two years.

Jurors know what to expect if you use orienting questions. Since the questions are preliminary, the fact that they are leading is not important and will not likely draw an objection.

d. Use transitional questions. Transitional questions are also very useful. They act like sign posts during direct examination, both for the jury and the witness. When the witness must testify on multiple topics, transitional questions indicate to the jurors when questioning in one area is complete and you have started questioning in a new area. Example:

Q: Mr. Jones, I would like to ask you about your background as a supervisor at Acme Company.

Q Let’s talk about the first reason for the plaintiff’s termination, her rudeness to customers.

Q: Mr. Johnson, now I’m going to ask you questions about what happened on the day defendant fired you after you filed your complaint with the EEOC.

Q: Mr. Jones, I’d like to take you back in time to October 22, 2008, at 3:00 p.m., when you observed the plaintiff stealing the TV from the warehouse.

e. Develop the witness background. When a witness takes the stand, juries always ask themselves at least three questions: (a) who is she? (b) why is she here? and (c) why should I believe her? As a result, you need to answer these key questions in the beginning of each examination. This is easy. Example:

4.19 Q: Mr. Hearing, please introduce yourself to the jury. A: I am Gregory Hearing. Q: Mr. Hearing, were you the manager who hired the receptionist? A: Yes.

These lines of questioning orient the jury to the general nature of the testimony and why the witness is there.

Answering the third question, why the witness should be believed, is more artful. In general, jurors like to know about the witness so they have a basis for assessing credibility. Jurors feel comfortable with people who are like themselves. Therefore, it is your job to show the jury that the witness is a normal, genuine person. You can quickly develop some general background with a few short questions.

Q: Mr. Smith, where do you live? A.: 3222 Main Street. Q: For how long? A: For about 15 years. Q: Does anyone live there with you? A: Yes. My wife and two teenage boys. Q: Do you have a job? A: Yes. I’m an accountant for the corporate office of Publix. Q: How long have you worked there? A: About 8 years.

You have shown that the witness is married, has children, is a long-time resident of the community, and holds a responsible job with a responsible company with these few simple questions. These facts all tend to show that the person is a mature, responsible community member, much like the members of the jury.

Jurors also like to get a feel for the witness and what they do on a daily basis. This is not necessary for every witness, but can be very helpful for key witnesses. You want the jury to see a “day in the life” of critical witnesses and why they are at the trial. Most courts will allow additional background development if it is efficiently done and the witness is a party or critical witness. Example:

Q: Mr. Smith, now you’re the plaintiff’s manager, correct? A: Yes. Q: What is your job at the defendant? A: I am an expediter at Acme Manufacturing. Q: What are your job responsibilities? A: Our manufacturing involves an assembly line. I make sure that all the raw materials for manufacturing our product are at the beginning of the assembly line when they’re supposed to be there.

4.20 Q: What happens when the raw materials are not there? A: We have to shut down the line and about 100 people end up standing around doing nothing because the entire line is shut down.

Background questions should be asked of most witnesses because credibility is always an issue. How much background should be developed depends on the witness and their importance in the trial. Background is not important for a records custodian.

Another purpose for introducing the witness is to give the jury important non-verbal communication messaging. Those messages begin as soon as the witness enters the courtroom. The witness’s interaction with the judge, the questioning lawyer, and the cross-examining lawyer are all matters that the jury watches with keen interest. Frequently, those non-verbal cues are controlling and can sometimes dominate the actual testimony. Jurors quickly form gut reactions about people and then look for facts to justify and support their conclusions.

Jurors assess credibility with their eyes as much as their ears. Physical attractiveness is an important component of trustworthiness. While you may not be able to change the physical characteristics of your witness, you can influence their attire and non-verbal conduct in the courtroom. First, decide what the witness should wear in court. I usually tell my witnesses to wear what they normally wear at work. In other words, I won’t take a maintenance mechanic and dress him up in a suit and tie. Instead, have the maintenance mechanic show up in a nice pair of slacks and perhaps a polo-style company shirt with the company name or the employee’s name embroidered on it. On the other hand, expect a company manager to come dressed in a suit and tie. For women, a conservative dress or skirt and jacket unless they work in a manual labor position. Security guards should wear their work uniforms, particularly if their testimony is related to their work. Uniforms usually enhance credibility. Jewelry should be kept to a minimum. The clothes should make the witness feel comfortable and give the jury the same impression in court that they would normally have when in the workplace.

You should also rehearse with the witness the layout of the courtroom and where they will give their testimony. Witnesses, much like jurors, normally don’t testify in court. They are nervous and anxious, and the more that you can do to make them feel comfortable, the better their testimony. The witness should be instructed to make eye contact, not with you, the examining lawyer, but with the jury. If the judge speaks, the witness should turn and look to the judge.

Keep in mind the jurors will be watching and assessing the witness as he enters the courtroom and goes to the witness stand. These steps can often take a full minute, at which time jurors are engaged in sizing up the witness before he ever says a word. If the witness comes into the room poorly dressed, slouches, and does not give adequate respect to the judge or court reporter when he is sworn, the jury has already formed a poor impression of the witness. Your goal should be to project a witness who is prepared to testify, confident in the courtroom, take their oath seriously, and is

4.21 comfortable in their witness role. They have nothing to hide and they are pleased to present their testimony.

f. Set the scene. Much like a movie production, the stage should be set before the action begins. All necessary preliminary information should be before the jury before you reach the action. Why so? Action testimony is most effectively and dramatically preserved if it is done in an uninterrupted manner. Get the action out and then go back and get the details.

Think of it like a movie. You start with a panoramic view. Is it sunny? Is it raining? Is it on a mountain? Is it in a valley? Is it in a desert? Once you have set the stage, you zoom in from the panoramic view on the details that are important to the movie. This makes it easy for the jurors to translate the testimony into a mental image of the scene. Example:

Q: Mr. Smith, what was plaintiff’s job? A: She was a telephone customer service representative. Q: Where did she work? A: In a large room with lots of other CSRs. Q: Did she sit near Mrs. Johnson? A: Yes. The room is set up in cubicles and plaintiff was in the cubicle next to Mrs. Johnson. Q: Is there anything that separates them? A: Yes. A small railing that is about two feet off their desks. Q: How was plaintiff and Ms. Johnson’s relationship? A: Fine, as well as I remember. Q: What happened on the afternoon of October 15, 2009? A: I was walking past plaintiff’s cubicle when she stood up and smacked Ms. Johnson in the face. Q: What happened next? A: Ms. Johnson started crying and said she had no idea the man she was dating was plaintiff’s husband.

By the above soliloquy, you painted a general description of the workplace and the proximity of the women to each other so they can understand the action-in-the-workplace drama.

In some situations, you will need the witness to describe details. If the witness’s testimony will be disputed by other witnesses, jurors look for reasons to accept one witness’s memory over the other. Details enhance credibility. Jurors usually believe the testimony of a witness who has a strong grasp of the details. Example:

Q: Do you recall the kind of car the plaintiff drove? A: Yes. Q: What was it? A: A red car.

4.22 Q: Are you sure it was the plaintiff’s car? A: Yes.

Example:

Q: Do you recall the plaintiff’s car? A: Yes. Q: What was it? A: It was a 1967 red convertible Mustang with tan leather interior. Q: Is there a reason you remember the plaintiff’s car? A: Yes. When I was growing up, my dad had virtually the exact same car. I always wanted to have a 1967 convertible Mustang. It almost made me cry when defendant’s truck crashed into that beautiful car.

In this situation, the witness has excellent memory of the automobile because his father owned the same car. It stands to reason that if the witness remembers the details of the car so well, he has an excellent recall of the action (i.e., the crash). Having the witness describe the surrounding details of the vehicle will subconsciously enhance his credibility on other matters.

g. Re-create the action. The most effective direct examination is to re-create the action so jurors can form a mental image. Re-creating the action is difficult and must be carefully organized. There are four basic considerations that you should follow when re-creating the action: (1) point of view; (2) pace; (3) sensory language; and (4) use of present tense.

1) Point of view. You must first organize your direct exam so the jury can observe it from a good point of view. The best point of view is usually through the eyes of the witness. Example:

Q: Ms. Smith, do you recall the events of July 25, 2010? A: Yes. Q: What happened on that day? A: My boss told me I needed to meet with an EEOC investigator. Q: Did you know this was happening in advance? A: No, he told me five minutes before it happened. Q: What happened then? A: The EEOC officer questioned me about whether I had heard anything about the charging party’s complaint. I told him my boss didn’t like the fact she dated a black man. Q: Was there anything else important that you told the EEOC investigator? A: No.

4.23 Q: Okay, let’s fast forward to a month later. Do you recall what happened then? A: Yes, the company was sued by the EEOC for unlawful employment practices. I was fired two days later. Q: Did they give any reason for your discharge? A: Yes, they said I was a poor performer, but I think the real reason I was discharged was because I told the truth during my EEOC interview.

This kind of testimony puts the jury in the seat of the testifying party. They see what the witness saw, and it is an effective way to get the jurors to adopt the picture from the witness’s point of view.

2) Pace. Jurors need to get a feel for what happened. Pace influences retention. Pace involves the speed of the examination so the jurors can comprehend key events. Pace can be controlled simply by asking the witness questions in small segments at a controlled rate.

Don’t forget. The jury has never heard the witness’s testimony. For example, a critical part of an automobile collision will take place in a few seconds. In that situation, pace can be used to slow down the action like a slow motion movie. You should describe the occurrence frame by frame so the jurors can appreciate the details. Example:

Q: As you approached the intersection of Florida Avenue and Twiggs Street, did you see any traffic: A: No. Q: What was your speed? A: 30 miles an hour. Q: As you approached the intersection, what happened? A: I slowed down and looked to the left and right. Q: Where was your car when you first saw the other car? A: I was entering the intersection. Q: How fast were you driving then? A: I had slowed to 25 miles per hour. Q: Where was the other car? A: He was coming from my left, going towards the intersection. Q: How fast was he going? A: I couldn’t tell. Q: What did you do then? A: I proceeded through the intersection. Q: Did you see the other car again? A: Yes. Q: When? A: When I was in the middle of the intersection.

4.24 Q: How fast were you going then? A: About 25 miles an hour, the same speed. Q: At that time, could you estimate the other car’s speed? A: Yes. Q: What was it? A: I would guess between 30 and 35 miles an hour. Q: Where was the car? A: It was coming right at me in the intersection. Q: How far was your car from his? A: Around 15 feet. Q: What did you do? A: I stepped on my brakes and turned my wheel to the left. Q: What happened then? A: His car rammed into me right around my door. Q: In what part of the intersection did the collision occur? A: Exactly in the middle. Q: What part of his car struck yours? A: His left front bumper struck the door of my car and dragged down the left rear side of my car. Q: Where did the car end up? A: My car stopped near the southeast corner of the intersection. His car was tangled in the rear left side of my car, perpendicular to it.

In this example, you have slowed down the action by having the witness describe several segments of the action: (a) approaching the intersection; (b) what happened just before the collision; (c) the collision itself; and (d) where the cars stopped after the collision. By using the witness to describe each sequence, you have created a slow-motion word picture of what actually happened in only a few seconds. Additionally, you have enhanced the witness’s credibility by showing the driver was totally alert as he drove into the intersection and could not have possibly caused the collision, since he was “T-boned.”

3) Sensory Language. Lawyers are educated and sometimes use complicated terms and Latin phrases. This does little to help the jury understand the case. Experienced lawyers use simple language so the jurors understand.

Keeping the examination simple requires you to use simple words and phrases and to encourage your witnesses to do the same. How a question is phrased has an important impact on how the question is answered. Terms such as “fired” versus “discharged” convey different impressions. Accordingly, you should decide what words and phrases you want to use that are consistent with your themes and labels.

4.25 Eliminate “HR” speak and other jargon from your vocabulary, as well as your witness. Consider the following:

Poor Question Better Question Do your employees take Do you evaluate your part in a performance employees? management system? Did you inform the Did you tell Ms. Jones she terminated employee of could continue her company their COBRA rights? insurance? Did she make her benefit Did Mrs. Lee submit her elections during open insurance paperwork before enrollment? the deadline? Did you have an occasion Did you talk with him? to converse with him? The phrasing on the right-hand side of the chart is much better. It is clear, simple, and more understandable.

Encourage your witness to use sensory language. Vivid words have impact and are better remembered. Most witnesses do not instinctively use sensory language, so you must prepare your witness in order to effectively present their testimony. For example, if you ask the simple question, “What happened to you at work,” the witness may respond, “I hurt my arm.” You can enhance this testimony with sensory questions. “When did you hurt your arm?” “How did you know it was hurt?” “What did your arm look like?” “What did your arm feel like?” “What were you thinking at the time?” If you ask sensory questions, the witness will respond with sensory answers. This makes for a better presentation of what actually happened. Example:

Q: What happened on October 1, 2010? A: I was driving the company truck to the warehouse after loading 27 computers. Q: What happened next? A: I was involved in a terrible accident when leaving company property. Q: Mr. Jones, just before the impact, what were you doing? A: I remember screaming, “No!” as I saw the other car run the red light. Q: What happened next? A: There was a huge crash. I was thrown into the steering wheel. I heard the slam of metal and the tinkling of glass. Q: What happened to you? A: The force of the crash threw me forward and my arm got caught up in the steering wheel and it snapped.

4.26 Q: What did you hear? A: I heard the bone, it was kind of a snapping sound. Q: What did you see? A: The bone was bent backwards at the elbow, kind of like Joe Theisman’s knee in that terrible Washington Redskins game many years ago. Q: What did you feel? A: I felt an immediate hot shooting pain, something like being burned by a fireplace poker, running up my arm and it kept getting worse. Q: What did you do? A: I remember groaning and then I passed out.

The above sensory language is vivid and helps the jury visualize what happened. It’s your job to bring out sensory testimony so the jury will get a vivid picture of what actually happened.

4) Present tense. You should always use present tense to recreate a dramatic event. It allows the jurors to relive the event and become emotionally vested. Example:

Q: Ms. Smith, do you recall the meeting where you were terminated? A: Yes. Q: Tell the jury what happened. A: It was a quarter of five on Friday afternoon. My boss called me and told me to meet him in the conference room. Q: What happened next? A: I knew I was getting fired. My last three performance evaluations were bad and I was on a performance improvement plan. Q: What did you do? A: It took me about a minute to get to the conference room and I took a deep breath before I entered the room. My boss was sitting in there waiting for me. Q: What happened next? A: He said I was being fired for embezzling money. I was completely shocked. I never took a cent in my life. He was completely wrong. Q: How did you respond? A: I denied his ridiculous allegation. He became angry and I got up and walked out. Q: Did you get any paper work? A: He tried to give me some letter, but I refused to sign it and left it sitting there on the table. I was so embarrassed when security escorted me out of the building.

4.27 Re-creating an event so the jury becomes emotionally involved is a difficult task and usually involves all the techniques described above. When done well, it can create wonderful moments in the courtroom.

h. No leading questions. There is a general prohibition against leading direct witnesses. A leading question is one that suggests the answer. Inexperienced lawyers usually lead too much on direct. While this violates the rules of evidence, more importantly it creates the image that the lawyer is testifying instead of the witness. Jurors may wonder if the witness would have given the same answer if the lawyer had not practically put the words in their mouth. Witnesses who answer other than “yes” and “no” are much more credible. Leading questions detract from the witness and diminish the impact of the witness’ testimony. Examples of leading questions follow:

Non-Leading Questions Leading Questions How was Mr. Jones as a Was Mr. Jones a strict supervisor? supervisor? How was your evaluation? Did you receive a very good evaluation for the third quarter of 2014? Was your paycheck correct? Did they dock your pay for a doctor’s appointment even though you were a salaried employee?

Effective direct examination is best achieved by using open-ended questions that seek descriptive responses. Example:

Q: What happened next?

Q: What did you see next?

Q: What did you hear next?

Q: What did the other witness do next?

When the witness is particularly good or important, consider using the answer as part of the next question. This should be used sparingly. Example:

Q: What were the exact words he used? A: “You’re fired. Get out of my office.” Q: After the defendant said, “You’re fired. Get out of my office,” what did you do?

Some witnesses like to hear themselves speak and give long narrative answers. These are both objectionable and not persuasive. To avoid this, you

4.28 will need to ask the witness more focused questions. Instead of asking, “What happened next,” you might ask, “What was the first thing you did?” “What happened after you called your supervisor?”

i. Let the witness explain. Sometimes a witness will use acronyms or will say something that is unclear. Since your job is to give the jury a clear understanding of the events involved, you should clarify unclear testimony immediately. Put yourself in the jury’s shoes. If it looks like they are confused or want an explanation, you should provide one for them. Obviously, you can’t embarrass the witness or the jury, so you should ask a narrow question that goes directly to the problem area. Example:

Q: I’m sorry, Mrs. Smith. You used the term “HR.” What does that stand for?

Q: When you said you saw him later, what time was that?

Q: I’m sorry, Mr. Doe. I didn’t follow you. Where were you standing when the employer disciplined the employee?

The jury will appreciate you clearing up the matter quickly and in a means that does not demonstrate they are unknowledgeable or not following the case.

j. Volunteer weaknesses. Trial practice normally dictates that you should volunteer weaknesses during direct examination. If the jury believes your presentation of the weakness, it will take the wind out of the sails before the cross- examiner can effectively do so. Volunteer early. This protects both the witness and lawyer credibility.

If you decide to volunteer a weakness, it is usually best to bury it in the middle of direct examination and make it part of the story. Jurors, like most people, remember best what they hear first and last. Start your examination on a positive note, disclose the unfavorable information, and then end it again on a positive point. For example, suppose an employment plaintiff has been disciplined for making a mistake. You know the plaintiff celebrated a co-worker’s birthday and had a glass of wine during lunch before she made the mistake in the afternoon. The direct examination might introduce the plaintiff’s excellent worth ethic. Describe the celebration of the co- worker’s birthday. Explain that plaintiff had a glass of wine at lunch, but that she was extremely effective for the rest of the week. The weakness will have less impact when it is volunteered after the witness has made a good first impression. Trial studies have shown people are reluctant to change their initial impression of a good witness even when confronted with unfavorable facts.

k. Use exhibits to emphasize key facts. In employment cases, exhibits are commonly used, such as emails, performance evaluations, offer letters, discharge letters, and the like. The preferable time to use exhibits is after the witness has substantially completed the action portion of their testimony. This is particularly true of

4.29 plaintiffs and defendants who have dramatic stories to tell about performance and termination. It is always best to bring out the action testimony without interrupting the testimony through exhibits. Describe exactly how the plaintiff acted during the termination meeting and then use exhibits after the action testimony to reinforce the plaintiff’s behavior during the meeting. For example, after the termination meeting, the HR manager may have written an email to document the employee’s refusal to sign important paper work. Don’t use the exhibit as part of the HR person’s description of the termination meeting. Rather, cover the action and then use the exhibit to reinforce the HR manager’s testimony.

l. Respond to witness answers. As a lawyer, you are probably caught up in your list of questions or the subject matters of the areas you want to cover with the witness. However, you must listen to the witness and give them feedback during trial testimony. You should appear interested in the witness and maintain eye contact. Occasionally, nod your head to let her know that you understand her answer and everything is going well. The jury will not hang on the witness’s words if you look bored and uninterested. Appearing interested is contagious with a jury. It eliminates any suggestion that the direct testimony has been scripted in advanced and keeps you alert when you encounter an unexpected answer.

m. Prepare the witness. There is nothing more important than preparing witnesses for testimony. I spend more time preparing my witnesses and making them comfortable than any other activity during the trial. When you meet with the witness, tell them why you are meeting. Let them know that it is entirely proper for lawyers to meet with witnesses to determine their testimony and to prepare them for testifying. Make sure you tell them that the other lawyer will cross-examine them and may try to use that meeting to show bias.

Review the facts the witness can testify about and review all earlier statements and testimony during the meeting. Go over any letters drafted by the witness or any events that the witness observed. Review resolution of potential problems, such as refreshing recollection, handling exhibits and their foundation, establishing business records, and potential impeachment with prior inconsistent statements. Tell the witness how they should dress for court. Discuss non-verbal communications about when the witness walks into the courtroom, takes the oath, and sits down in the witness seat. Discuss eye contact. Remind the jury that they must maintain a positive, friendly demeanor at all times.

You should give the witness standard advice on testifying. You can do it in a meeting or put it in writing. Different witnesses have different learning styles. Most importantly, tell the witness to use the complete truth. Tell the witness to take their time in answering the question. Tell them to make sure they understand the question. If they don’t, make sure they say so. Use simple language. Tell them to keep their answers simple. Tell them not to volunteer unnecessary facts. Tell them not to guess. Tell them to be polite and patient at all times. And tell them not to be combative with the cross-examining lawyer.

4.30

The most important part of witness preparation is a mock cross- examination. After we have rehearsed what I expect to bring out on direct, I normally give witnesses a highly-charged cross-examination much worse than what they will likely encounter in the courtroom. I confront the witness with inconsistencies so they will know what to expect during trial. I bring out every weakness with them. It’s easy to script direct testimony; it’s difficult to prepare your witness for a vigorous cross- examination. The more you prepare the witness, the better they will perform at trial.

3. Adverse Witnesses. These materials have focused on direct examinations of witnesses who are favorable to your client. Thankfully, these witnesses cooperate and are helpful in presenting testimony. They share your interest in maximizing the impact of their testimony and being credible.

Adverse witnesses are the exact opposite. An adverse witness is anyone who, because of their position as a party or because they have a special relationship to a party, will give detrimental testimony to your client. The witness favors your opponent. Adverse witnesses will use every opportunity to hurt your case. Normally, you need not call a witness who intends to hurt your case unless it is necessary to establish a claim of the element or defense. The other time when you want to select an adverse witness is when you are sure they will make a poor impression on the jury.

Because an adverse witness is outside of your control, you are permitted to examine the witness as if on cross-examination. This means you can lead the witness.

When you call an adverse witness, make sure you inform the court that the witness is adverse. Example, “Your Honor: At this time, we’d like to call Jim Jones as an adverse witness.” This makes it clear to opposing counsel and the court you will be leading the witness instead of asking open-ended questions.

If you call an adverse witness, you should make his testimony as brief as possible. Lead them to the necessary facts, draw them out, and stop. If you leave this witness on the stand any longer than necessary, he will use the opportunity to hurt your case. Brevity is best.

Be aware that some plaintiff’s lawyers like to start their case by calling the defendant as an adverse witness. This approach can be extremely effective when you know the defendant will make a bad impression on the jury (you know his demeanor through deposition). Additionally, this can be effective if the defendant has horrible facts he must admit and you have done an effective job locking down on those facts in deposition.

4. Hostile witnesses. A hostile witness is one who unexpectedly turns against you during his testimony at trial. For example, it might be a supervisor who initially fired the plaintiff but then himself was eventually fired by the company. This witness may surprise you on the stand. If a witness becomes hostile, the same rules for

4.31 adverse witnesses apply. You can examine the witness as if on cross-examination since leading questions are “necessary to develop the witness credibility.” Fed. R. Evid. 611(c).

In order to declare a witness hostile, in most jurisdiction you must make a showing that the witness has surprised you. When the witness surprises you by giving totally unexpected answers, ask enough questions so your surprise is made apparent to the court. Ask for a sidebar conference or short recess. Once out of the jury, explain to the judge that you have been surprised and anticipated substantially different testimony. Most of the time, you must show surprise at trial. Present to the court any prior inconsistent statements and, most of the time, the judge will allow you to treat the witness as hostile.

In the presence of the jury, have the witness again admit making prior inconsistent statements and then begin with a cross-examination of the witness. As with an adverse witness, the safer approach is to conduct a short examination with leading questions and get the witness off the stand as quickly as possible.

E. Use of Exhibits

1. Introduction. This is the age of visual media. Television is the most dominant method of transmitting information in our society. Printed newspapers are on the decline. Communication by talking has taken a back seat to visual media. A whole generation of Americans has been raised by watching computer screens, cell phones, and television. Children learn by watching tablets and cell phones, not by reading.

Studies show that learning and retention are significantly better if information is communicated visually. Different people have different learning styles. Some learn by reading, some learn by listening, and some learn by watching. When information is presented through multiple channels, aural, written, and visual understanding is dramatically increased. Visual exhibits are critical, not only in presenting new information, but highlighting and summarizing information. It’s your job both to show and tell the story.

2. Use of Visual Aids and Exhibits. You should plan, prepare, and use visual aids and exhibits in order to tell your story effectively.

a. Develop a visual strategy. Visual aids and exhibits can be dramatic. If seeing is really better than hearing, use visual exhibits. Be careful. Visual aids and exhibits can be overused and misused. Therefore, you must develop a visual strategy for witness testimony. This requires three things: (1) what to use, (2) when to use it, and (3) how to present it.

First, decide what visual aids will be effective during your trial. While it is easy to use emails, performance evaluations, performance counseling memos,

4.32 and the lake, think about demonstrative exhibits which will be powerful during your opening and closing examination. For example, your opening might include a chart showing key employees of a corporate defendant or a chronology of events. Your closing might use a checklist of key points to show the employer’s proffered reason for discipline was a pretext for unlawful events. Closing arguments might also use a summary of key damages. Most courts will permit the use of such aids, which are usually a visual representation of what the lawyer is arguing. They must be factually accurate and based on admissible evidence. Keep in mind that if the exhibit is admissible in evidence, it will usually go to the jury room during deliberations. On the other hand, demonstrative exhibits, often used in opening and closing, do not go to the jury room, but will often be more powerful.

Second, decide when to use visual aids or exhibits at trial. Will the visual aid be used in opening? Will it be an exhibit formally offered in evidence during direct examination? If you use an expert, will the exhibit be a teaching tool to illustrate the expert’s testimony? Will you use the exhibit during cross-examination of an adverse witness? Often the most effective way to use exhibits is to intermingle them during examination to drive home key points.

Third, most importantly, decide how to present visual aids during the trial. Visual aids can be documents, records, transcripts, video tape testimony, objects, photographs, charts, diagrams, or models. Think about whether exhibits should be enlarged and mounted on poster board or, alternatively, whether you should use an overhead projector. Most courtrooms contain a camera device that will enlarge the exhibit and project it on the wall. These devices are commonly known as “ELMO” projectors. You should evaluate presenting visual aids and exhibits as the last part of developing your trial strategy. Remember, technology is a tool, it is not a strategy.

Also, learn the judges’ attitudes and procedures about visual aids and exhibits. Most judges will permit use of exhibits during opening statements and closing arguments, so long as they have been or will be admitted into evidence. Normally, I show any exhibits I intend to use at opening or closing to opposing counsel prior to presenting arguments. This way I can avoid objections during my opening or closing as to exhibits or summaries. Keep in mind summary exhibits must be understandable and easy to use with witnesses. It is important that you are able to use the exhibits smoothly during trial. Once you have developed an overall visual strategy, you should prepare and present your visual aids and exhibits for the use of the jury and trial judge.

1) Objects. Media are good at featuring objects in a news story. When you see a news conference where police have seized a large portion of drugs, the police chief is usually standing in front of microphones in a press room. In the background or nearby are stacks of drugs, all within view of the television camera. When the chief announces the details of the seizure, the cameras inevitably focus on the seized drugs. This is effective use of objects.

4.33 Trials can use similar methods to emphasize key facts. Objects such as drugs, weapons, equipment, and machinery can have a dramatic impact on your case. Most good lawyers keep the object out of sight and then introduce it into the courtroom with some flair. Plaintiffs in product liability cases often bring the product into the courtroom, such as an exploded tire. Seeing the actual object has a powerful psychological impact on the jury.

If you are a defense lawyer in an employment case where the employee was fired for bypassing a critical safety procedure in an industrial environment, think about bringing a mockup of the equipment to show what the plaintiff did wrong. This, when combined with training materials, OSHA rules, and other examples where the employee was trained on the equipment, can produce an impressive understanding of the correct procedure. With that foundation, it becomes easier to show how plaintiff intentionally evaded the procedure.

2) Diagrams and charts. Diagrams can have great usefulness in a courtroom. While a diagram may not be as detailed as a photograph, they summarize information. They can filter out extraneous details, and they can be marked to highlight important items in your case. Consider a sexual harassment where the manager corners a young woman. You can create a diagram of the office, showing important items such as her chair, desk, and potential routes of escape. If you are examining the plaintiff, the diagram can show that the manager blocked all effective routes of escape and caused her to be cornered during the incident of sexual harassment.

Charts are also an effective way to display information. They can show the relationship of key facts over time. For example, in a RIF case, you can show that corporate profits were going up while headcount was going down. A pie chart can be used to effectively show a reduction in force was proportionately skewed towards its older workers. If you are defending an age case, a bar chart might show that the older worker earned more money and the company had a right to discharge him based on cost.

Flow charts are also useful in organizing information. For example, a plaintiff’s lawyer may use a flow chart to demonstrate progressive discipline. A flow chart might show that the plaintiff was entitled to counseling, an oral warning, a written warning, a suspension, and then termination. Yet, in the instant case, a new supervisor terminated the plaintiff without using progressive discipline.

3) Summaries. Summaries include two types of exhibits. Under Fed. R. Evid. 1006, if records are so voluminous that it’s impractical to bring them into the courtroom, you are permitted to use summaries of those records if the parties are on notice that you intend to introduce them into evidence and if your opposing counsel has the opportunity to compare them to the original record.

The summary rule allows you to create effective courtroom exhibits. For example, if you are disciplining an employee for failing to follow an

4.34 important chemical process, a chart could be prepared showing the chronological steps in the process. This type of summary is more effective than introducing computer printouts or handwritten notes that also provide unnecessary detail. In order to use such a summary, you must have a qualified witness to establish an appropriate foundation.

A different type of summary uses admitted evidence prepared by a testifying expert. For example, if a plaintiff intends to introduce her damages and front pay, you may use an accountant as a summary witness to testify to lost wages, healthcare costs, actuarial contributions to defined benefit plans, and similar mathematical calculations to describe damages. If the summaries are accurately based on admitted evidence, the expert summary should be admitted into evidence.

Demonstrative visual aids used for opening and closing are not summaries. These types of visual aids are not a summary and, in fact, are not evidence at all. They will not be taken back to the jury room; however, they can be very persuasive in opening or closing to drive home key points.

3. When to Use Exhibits. Exhibits get the jury’s attention. They provide movement and a change in scenery. For this reason, you should use them as much as possible. In contrast, keep in mind that exhibits draw attention away from testimony. While the jury is examining the exhibit, they may not listen to the witness’s testimony. As a result, you must be very careful in the decision when to use exhibits. Do not let the exhibits interrupt the pace and flow of the “action testimony.”

There are three basic ways to use exhibits during witness examinations: (a) during direct examination, (b) at the end of the direct examination; and (c) when there are multiple exhibits.

a. During direct examination. In most employment cases, the exhibit can be introduced during the direct examination. This usually involves common employment-related documents, such as the application, employee handbook, sexual harassment policy, code of conduct and ethics guidelines, and similar documents. When an exhibit must be explained, the exhibit is normally introduced first, such as when there is an obligation to report sexual harassment. The policy tells the story and the human resources individual acts as the owner of the policy. In this case, the exhibits tell the story how the employee was selected, why she was selected, and the rules of her employment. Key exhibits can be enlarged and placed in proper sequence before the jury so the witness can then describe what happened using the exhibits as focal points.

b. At the end of direct examination. In order to keep the jury focused on the witness testimony, another method is to wait until the direct examination is over before you introduce and qualify exhibits. This method has several advantages. First, it can avoid interrupting the pace and flow of eyewitness testimony. This is important when the testimony is graphic and emotionally compelling. For example, if you represent an employment plaintiff who has alleged sexual harassment, you do not want to intersperse the sexual harassment policy into the examination while she is

4.35 testifying about the offensive acts taken by her manager. Second, it allows you to publish the exhibits to the jury after the witness has established their foundation. It allows you to highlight key parts of the exhibits and re-emphasize points made during direct examination. The jury is not usually bored because the exhibits are interesting and looping back to them drives home the direct examination key points.

Using exhibits at the end of direct examination works particularly well with critical witnesses, frequently a victim in a sexual harassment case or an important eyewitness. With these witnesses, the critical part of their testimony is the action description, which should flow quickly and have good pace. Once the event has been described and the jury has an overview, you can loop back and have the witness testify as to physical evidence, such as photographs and diagrams. This builds witness credibility and helps explain the action and put it into context. The witness can then mark the photographs and diagrams and show the locations of parties and events they previously described.

c. Multiple exhibits. If you only have a few exhibits, you can hand the exhibits to the witness individually and set the foundation for its admission before moving to the next exhibit. If possible, you should establish the foundation for numerous exhibits and pretrial conference. Otherwise, you spend needless and boring time authenticating exhibits. In employment trials, there are often many exhibits which are not dispute. Emails between employees and management, performance evaluations, and the plaintiff’s personnel files are frequently candidates. These documents are normally turned over in discovery and their authenticity is not in dispute as they are normally created at or around the time the events in them occurred. Example, assume you have a wrongful discharge trial of a customer service representative who provides telephone support for a wireless phone provider. The custodian of records may be called to qualify the computer entry for each of the 20 telephone calls served by the CSR. Instead of introducing each of the documents individually, they could be marked as a group and the witness can review them and ask the Fed. R. Evid. 803 foundation requirements for the entire group of documents. This moves the testimony along considerably faster.

4. Exhibits and Jury Deliberations. Most exhibits go to the jury during deliberations. However, their treatment depends on the kind of exhibit or the type of visual aid involved. There are two exceptions. First, a dangerous exhibit such as chemical, drug, and the like may be kept from the jury in the discretion of the judge. Second, demonstratives exhibits may go to the jury; however, some judges do not allow them to go to the jury because they are simply “illustrative.”

Visual aids that the lawyers made and used during opening or closing very seldom go to the jury. These include damages charts or checklists of major points. These are not exhibits. Instead, they are visual aids used to supplement closing arguments. They are not evidence and, therefore, they do not go to the jury during deliberations.

4.36 F. Cross-Examination and Redirect

1. Introduction. The term “cross-examination” commands respect and is one of the most exciting aspects of a trial. At no time is the jury more focused than when the opposing lawyer comes up to discredit the witness after direct examination. Guidelines for cross-examination are difficult because each trial is unique. These materials will focus on three areas. First, making decisions, when to cross-examine, and how to organize the examination. Second, the key purposes of cross-examination. Third, technical skills to conduct successful cross-examinations.

2. Should You Cross-Examine. For most adverse witnesses, you will have taken their deposition prior to trial. Therefore, you should have a realistic understanding of what you can expect to achieve during cross-examination of that witness. Prepare a brief outline of the facts admitted during deposition.

Although you have prepared a cross-examination in advance, you may not necessarily use it at trial. You are not required to cross-examine every witness at trial, and if you get up to cross-examine a witness, the jury will assume the witness has hurt your case. If you decide not to cross-examine, make sure you announce it in a confident manner. In order to determine whether you should cross-examine, ask yourself the following questions:

a. Did the witness hurt your case? Trials are challenging in that you must meet technical requirements of establishing legal elements as well as telling a persuasive story. These do not always fit together well. As a result, not every witness will have a devastating impact. Some witnesses simply provide foundation for evidence exhibits not in dispute, and other witnesses will simply collaborate testimony established by prior witnesses. Where the witness has not damaged your trial theme, cross-examination does not add anything to the trial.

b. Is the witness important? Jurors have preconceived notions about trials. Most jurors believe that every witness should be cross-examined. Sometimes, you have to accommodate the jury’s expectation. If the witness has a significant role in the trial, you should normally undertake cross-examination. If you don’t, it may generate negative impressions for the jury and can invite negative comments from opposing counsel during closing argument.

c. Was the witness credible? Trials are about uncertainty. You should tell your client to expect the unexpected. As a result, sometimes witnesses who are very sincere don’t make a good impression and their testimony seems unbelievable. If you are lucky enough to be the recipient of this situation, leave well enough alone. In those situations, the damage has already been done, so failing to cross- examine and leaving a foggy memory with the jury may be the soundest approach.

d. Did witness present less than expected on direct? Did the witness or her lawyer omit an important part of their testimony? You should be able to

4.37 identify it if you took her deposition. If so, conducting cross-examination gives the witness time to repair the omission on redirect. If the witness omitted an important part of the testimony, don’t give them a second chance to fix it.

Is the lawyer sandbagging you? Do you think the witness has intentionally withheld a damaging part of his testimony on direct, hoping you will pursue it on cross-examination? Because jurors pay attention to cross-examination, damaging testimony is particularly noted during cross-examination. If you think opposing counsel is sandbagging you on an important point, consider foregoing cross-examination to thwart the sandbagging.

e. What are your honest expectations on cross? Candidly ask yourself if you have any real ammunition for cross-examination. If the witness is credible and your ammunition is weak, consider foregoing cross-examination altogether. If the witness has made a reasonable impression on direct, the jury will like the witness. Remember, in the cross-examination game, ties go to the witness. As a result, unless you expect to score points during your cross-examination, avoid it or simply conduct a cursory inquiry.

f. What are the risks of cross examination? Most lawyers hope to try an invincible case. They want witness upon witness whose testimony simply overwhelms the opposition. This rarely happens. Consequently, you are required to take calculated risks. The number and extent of those risks are dependent on the strength of your case. If your case is very solid and you have good expectations of winning, you should keep your risk to a minimum. However, if your case is a potential loser and the defendant has refused to settle, you might conduct risky cross-examination, hoping for the break that might turn the case around. If your case is weak and you don’t get a break, your case will not be any worse than before. On the other hand, “safe” cross- examinations should be used when the facts of the case are in your favor.

3. Purposes of Cross Examination. Cross-Examination has two goals. First, eliciting favorable testimony and, second, destroying unfavorable testimony.

a. Eliciting favorable testimony. Eliciting favorable testimony involves getting the witness to admit facts that support your case and are consistent with your themes and labels. In nearly every case, your cross-examination should seek to achieve goal number one.

b. Destroying unfavorable testimony. Conducting a destructive cross-examination involves asking questions which will discredit the witness so the jury will minimize or even disregard the witness testimony. If you decide to do a destructive cross-examination, make sure you elicit favorable testimony first. At the end of direct, most witnesses feel good and their credibility should be high. While their guard is down, this is the time to extract favorable admissions from the witness. Favorable admissions are less likely if you have already attacked the witness through destructive cross-examination.

4.38

You should carefully decide whether to undertake a destructive cross-examination. If you have been successful in obtaining significant admissions, you may decide not to discredit the witness. If the admission was favorable, it is best to stop there and not discredit the witnesses. Remember, discretion is the better part of valor in most situations.

4. Elements of Good Cross-Examinations. Good cross- examination follows a structure that gives the examination a logical and persuasive order. That structure should be based on the following considerations:

a. Cover only a few basic points. Juries have been trained to remember sound bites. Most juries can only remember three or four key points. Therefore, your cross-examination should have a similar structure. If you attempt too many topics on cross-examination, it creates two problems. First, the impact of your strongest points will be diluted and, second, the less significant points will be forgotten entirely. A good rule is to ask yourself, “What will I say about this witness during closing argument?” If the item is not important enough to raise in closing argument, then it is probably not worth raising in cross-examination.

b. Make strongest points at the beginning and end. Just like direct testimony, your cross-examination should open strong and end strong. Jurors remember what they hear first and last. The principles of primacy and recency should govern your cross-examination technique. If you took the adverse party’s deposition, you should already have a good idea about strong points on cross examination.

c. Vary the order of the topics. Successful cross-examination occurs before the witness understands the purpose of your question. Varying the order of your topics will make it less likely that the witness can anticipate where you are leading them. If opposing counsel organized the direct examination to be clear and persuasive, don’t follow her approach during cross-examination. Instead, keep the witness guessing where you are going.

d. Don’t repeat the direct examination. During cross- examination, less is better. An inexperienced lawyer will allow the witness to repeat their direct examination in the foolish hope that the witness’s testimony will be different when they tell it a second time. This approach usually fails. You should only use this approach if the major parts of direct examination support your theory of the case.

5. Fundamental Cross Exam Techniques. Your ability to conduct good cross-examination is better if you follow a few simple principles. The critical ones are described below.

a. Start and end crisply. The first minute of cross- examination is critical. During the first few questions, the jury expects meaningful testimony. If you don’t start with a bang, the jury will get bored and decide they’ve

4.39 already heard the critical testimony from the witness. Avoid phrases “I just have a few questions for you, Mrs. Smith” or “Mr. Simpson, I’d like to go over part of your earlier testimony.” This does nothing to start your cross-examination with a bang. Start with something that grabs the jury’s attention, such as “Mr. Johnson, you’re a convicted felon, aren’t you?” This creates excitement and tells the jury your cross-examination will be interesting and informational. Make the questions interesting and crisp.

b. Know the probable answer before you ask the question. You already know this principle, but it is important and cannot be overstated. Play it safe. Most witnesses will seize the opportunity to hurt you during cross-examination. This is not a time to fish for interesting information. The sole purpose of cross- examination is to elicit favorable facts or discredit the witness. As a result, your questions should tread on safe ground. Ask questions that you know the witness must answer in your favor.

c. Listen to the answer of the witness. This one seems obvious; however, many lawyers prepare a preconceived list of cross-examination questions during trial preparation and stick to it no matter what. Witnesses constantly surprise. Unless you are listening, you will miss nuances and opportunities to discredit the witness. Reluctance and hesitation in answering could be overlooked. Listen to the witness. Don’t be focused on worrying about your next question. Instead, organize your notes into cross-examination topics and formulate your cross-examination questions spontaneously. This method allows you to watch the witness and gauge the witness’s reaction to your question. It also gives you the flexibility to formulate appropriate follow-up questions.

d. Don’t argue with the witness. Inevitably, cross- examination is frustrating. The witness is often evasive and her answers will often not be to your liking. Resist the temptation to argue with the witness. Arguing appears immature and unprofessional. As a lawyer, you must maintain your credibility with the jury. If you stoop to the witness’s level, it will reduce your credibility.

e. Never ask the witness to explain. Open-ended questions are inappropriate on cross-examination. Most witnesses are looking for an opportunity to stick it to you with the damaging answer. Never ask questions about who, what, when, how, or why. These questions invite disaster. Instead, these are the type of questions you should use during your direct or redirect.

f. Don’t ask one question too many. You should only ask enough questions on cross-examination to establish your few basic points. Specifically, a good approach is to limit your questions on cross-examination to points you intend to make during closing. As a result, you should avoid asking the last question that drives home your point. Instead, the cross-examination should only suggest the point of your inquiry. That way, you can rhetorically pose the question during closing argument and answer it the way you want it answered without interference from a witness who might give you a bad answer.

4.40

g. Stop when finished. Cross-examination can be intoxicating. Most lawyers enjoy the cross and are tempted to keep asking questions. Inevitably, there is always one more question you should ask, one more point you can establish. Avoid the temptation. It is dangerous. Keep in mind the jury has a limited attention span, which will normally last 15-20 minutes. Stick to your game plan and get to your most important point before the jury gets bored. Get up, make your point, stop, and sit down.

6. Questioning Style. Cross-examination requires a different attitude than that used during direct examination. Effective direct examination requires you to focus on the witness; you are secondary. You remain in the back, you ask open-ended questions and let the witness dominate the examination. If you do a good job, the jury’s attention will be focused on the witness, not you. Cross-examination is the opposite. Accordingly, you should follow certain rules when conducting cross-examination.

a. Ask leading questions. A leading question is one that suggests the answer. Ironically, inexperienced trial lawyers make two mistakes during witness examination. First, they lead too much on direct and, second, they lead too little on cross. You make the question leading not only through your language, but through your introduction and attitude. The advantage of this approach is that the questions are simple, making it effective when you desire to establish a series of similar points. If you ask non-leading questions, it can break up the pace of your cross-examination. It allows the witness to take over the examination. This should be avoided at all costs.

b. Make statement of fact and have the witness agree. Your job during cross-examination is to make the principal assertion of fact. Under this approach, the witness should simply be asked to agree with each of your statements. During cross, you testify and the witness simply ratifies. You should be able to elicit a “yes” or “no” answer to each question. If the witness is given a chance for a self-serving answer, he or she will take advantage of it.

c. Use short simple questions and slowly build your theme. Cross-examination is a process. Its purpose is to make important points out of minor admissions. Don’t make your key admission through asking one question. Instead, lead up to each point with a series of short, precise questions. The most important question you want to save and answer is the one you will make in your closing argument.

d. Control the witness. Keeping control of the witness is critical during cross-examination. That control is determined by asking precisely phrased leading questions. Don’t give the witness an opening to hurt your case. Control also requires the witness to obey evidentiary rules, especially those involving non-responsive answers. When a witness engaged in this behavior, ask the court to strike the non- responsive answer or to admonish the witness. This happens most often when the witness uses “yes, but” answers. For example, you might ask if Jack Jones was driving the car with the following question: “Jack Jones was driving the car, wasn’t he?” The

4.41 witness might answer, “Yes, he was weaving and looked drunk.” In this instance, you should ask the court to strike the witness’s answer as non-responsive other than “yes.” The court will normally instruct the jury to disregard the non-responsive answer. This has limited utility. Of course, the jury will not entirely forget it because you cannot “unring the bell.” Nonetheless, the court’s instruction serves a useful purpose because it tells the jury that the conduct was improper and adversely affects the witness’s credibility. The disadvantage of moving to strike is that it discredits you as the examiner. The subliminal message is that you’re incapable of controlling the witness and need to turn to the judge for help. For that reason, some lawyers choose not to move to strike and disregard unresponsive answers. A more effective approach to controlling a problem witness is to insist on a proper answer after a non-responsive one. If the witness gives a proper answer upon re-examination, you have made your point. If the witness refuses to give a proper answer, hopefully you have demonstrated that the witness is evasive or unfair. Thus, you have discredited the witness. Sometimes, you can do this by simply repeating your question or rephrasing it slightly. If that draws an objection, you can argue the witness has yet to answer the question properly. Example:

Q: Mr. Smith, between 11:30 and 1:30, you have five glasses of wine at the employee’s celebration party, didn’t you? A: Well we were all drinking. Q: Mr. Jones, my question is did you drink three glasses of wine during lunch? A: Well, I guess so.

e. Use a “take charge” attitude. At cross-examination, you should be the center of attention. Ask questions in a manner that projects confidence. It is essential that you project confidence both to the jury and the witnesses. This telegraphs to the jury you are a master of the facts. On cross-examination, the method in which you ask the questions is almost as important as the question itself. Humor, incredulity, and sarcasm are all important parts of cross-examination. Use them when necessary. Projecting that attitude usually has a significant impact on getting the answers you want.

Be careful; don’t be too hard on the witness. Beating up an elderly grandmother type rarely scores any points with the jury unless she is a flat out liar, and then you still need to be careful.

f. Keep a good poker face. Inevitably, you get bad answers on cross-examination. When this happens, you should keep a good poker face. When juries hear a devastating answer, they will often look around the courtroom to gauge the reaction of the judge, lawyers, and other spectators. If the witness drops a bomb, don’t react to it. Simply go on as if nothing had really happened. If you are stunned with the answer, it will only help the witness take advantage of your inexperience. If you keep a poker face, the jury may well conclude that the answer was not as damaging as it might have appeared.

4.42

g. Use a natural style. Cross-examination lets your personality come out. Make sure you use a style that is natural, so you feel comfortable. Don’t try to convey someone else’s style.

7. Using Cross to Bring Out Favorable Testimony. Your primary purpose as cross-examiner is to elicit facts from the witness that will support your case. You want those answers to be consistent with your theory of the case, your labels, and your theme. Getting good answers from the witness should be done first because the witness will be more cooperative. If you are pleasant and courteous to the witness, you have a better chance of obtaining favorable testimony. Consider the following items when eliciting favorable testimony:

a. Did part of the exam help your case? Most of the time, very little of a direct examination is actually damaging. Some facts are neutral or even sometimes helpful to your position. If so, have the witness repeat favorable facts because the jury is more likely to retain that information when it is drawn out on cross- examination.

b. Can the witness corroborate your case? If you took the deposition of the witness, you should have a good understanding of their knowledge. Even if certain helpful facts were not drawn out during direct examination, you may cover those during cross. If so, get the admission into evidence through the other side’s witnesses. Those admissions will be remembered by the jury.

c. What must the witness admit? Compare statements by the witness with your own witnesses. If the prior statements are favorable, then it’s safe to ask the witness about information that helps your case. If the witness contradicts his own prior statement, he can be effectively impeached. If he contradicts witnesses on the same side, you have established a contradiction in your opponent’s case.

d. What “should” the witness admit? This category is more dangerous. These are inferences where you have admitted facts and, logically, the witness should admit similar facts. This can be gauged by common sense, logic, and probability.

8. Using Cross-Examination to Discredit Unfavorable Testimony. Discrediting cross-examination has one purpose: to damage witness credibility following cross-examination. Your focus is to elicit unlikely explanations, reactions, contradictions, inconsistencies, or implausibilities. Resist destroying the witness. This rarely occurs. Even though you are convinced that the witness has perjured himself, very seldom will you be able to demonstrate to a jury that the testimony has been completely fabricated. While some witnesses are flat out liars, most are confused or forgetful. Most witnesses who tell a story inject their own attitudes, perspectives, and selectively recall their testimony. This coloring is usually unintentional and sometimes subconscious, is a great area for developing on cross-examination. Consider two basic methods.

4.43

a. Discredit or limit testimony. The most common type of cross-examination challenges the reliability of the testimony or limits the importance of the testimony. Although most witnesses are honest and attempt to present an accurate narrative of the event, there are usually inconsistencies. The witness may not be aware of their action. Witnesses often see only parts of an event and fill in the gap by what they think are logical inferences. After repeating the event several times, they honestly believe they actually observed the filled-in fact since their memory has blurred the distinction between actual observation and the filled-in facts. Consequently, an effective cross-examination shouldn’t be a direct assault on the witness’s integrity but, instead, should chip away at the witness’s failure to accurately observe. The best approach is to accept the witness’s honesty, but have your cross-examination suggest inferior reliability. You can discredit (a) witness perception, (b) memory, and (c) ability to communicate the facts 1) Perception. A common theme for cross- examination is to focus on the witness’s ability and opportunity to observe the events in question. This will work best when the event occurred quickly and unexpectedly. It will also work when the witness was frightened or surprised, or even if the lighting was poor. If done effectively, the jury will realize the circumstances under which the witness made her observations were not ideal. As a result, the witness’s testimony is not very valuable.

2) Memory. Many trials take place years after the events in question. The witness’s ability to remember details of the event or efforts to record or preserve details are important. This is important when the witness had a great opportunity to accurately observe the event, but the time between the event and trial is substantial. If this happens, you can focus on the fact the witness has forgotten details, made no effort to record them, or simply cannot separate this event from other similar events.

3) Communication. Not all witnesses are the same. While any number of witnesses may have the ability to observe an event, not all can communicate the facts. There is little value to a witness who can excellently observe an event yet ineffectively communicate it. Her observations are only as good as her ability to explain what actually happened. For example, you might attack the witness’s ability to estimate distances or time in order to show the witness cannot accurately recreate a picture of what actually happened. These inconsistencies are effectively used in closing arguments. b. Discredit the Conduct. Actions usually speak louder than words. You can take advantage of this old adage by showing the witness testified in a reasonable manner, yet his conduct was inconsistent with the testimony. With this method, it is your job to emphasize the inconsistency between testimony and conduct.

This method is frequently used by defense lawyers in sexual harassment cases. For example, if the sexual harassment was egregious and offensive yet the employee did not report it to management, this impacts her credibility. If the conduct

4.44 was severe, it should have been reported. This can be bolstered with the employee manual, especially if receipt of the handbook was acknowledged.

9. Impeachment. Impeachment is a very effective trial technique. When correctly used, it can have a tremendous effect at trial. Jurors appreciate impeachment. They enjoy seeing a witness “caught” changing his story. Because impeachment is dramatic, its use should be selective. As a result, learning how and when to use impeachment in employment trials is critical.

The purpose of impeachment is to demonstrate that the witness cannot be believed. Impeachment is governed by a series of technical rules under Fed. R. Evid. 607. Any party can impeach any witness. The rule is very broad. There are at least basic impeachment techniques: (1) bias, interest and motive; (2) prior conviction; (3) prior bad acts; (4) prior inconsistent statements; (5) contradictory facts; (6) untruthfulness as part of witness character.

a. Impeachment requirements. Impeachment must be fair. While the rules of evidence are relatively silent on impeachment procedure, common law has developed certain procedural protections.

Good Faith. In order to impeach a witness, you must have a good faith basis for believing the impeaching fact is true. Unless you have a good faith belief, you should not impeach. The judge may require that you disclose the good faith belief during your cross-examination. The requirement protects a witness from being unfairly attacked. Good faith is also required under the Rules of Ethics. See Model Rule 3.4.

Use in Cross-Examination. Most jurisdictions require that you impeach during cross-examination. Fairness requires that the witness be asked about an impeaching act so they can respond to it. Judicial economy requires that the impeaching fact be brought out in cross-examination because if the witness admits the impeachment, there is no need to prove it.

Proof of Impeachment. You must only prove up the impeachment if the witness denies it. If the witness unequivocally admits impeachment, there is nothing to do. If the witness equivocates, you may consider it a denial. Equivocations include phrases such as “I’m not sure,” “I don’t remember,” or “I might have.”

There are rules on whether the impeachment is collateral or non- collateral and as to whether you must simply take the witness’s answer without further impeachment until you have started your case in chief. The basic procedure governing impeachment depends in large part on the particular impeachment method being used. Each will be discussed below.

b. Bias, interest, and motive. Bias, interest, and motive are always in play. They govern credibility and whether the witness can be believed. As to bias, interest, and motive, if the witness does anything other than admit the matter, you

4.45 must prove it with extrinsic evidence. Regardless of the three items, you should use the same approach. Examination should carefully suggest the impeaching facts and then stop. An overzealous cross-examination may offend the jury. You must be subtle.

1) Bias and prejudice. Bias and prejudice keep a person from being impartial. This usually involves exposing a family, personal, or employment relationship that renders the witness not capable of being impartial. For example, if you are examining the mother of an employee because she happens to work at the company, it will be obvious she has a bias toward her son. The idea is to allow the jury to sympathize with the poor woman whose son needs her to testify. Alternatively, cross-examination on bias can be deferred completely. Instead, it can be raised effectively in closing argument as to why the mother’s testimony should be disregarded or have limited effect.

2) Interest. Interest relates to the witness receiving a possible benefit or detriment from the outcome of the case. Most often, the witness’s interest is financial. Since greed is a common motivation, demonstrating interest could have a powerful adverse effect on witness credibility. For example, in a promotion case, the person receiving the promotion may testify as to their qualification against the would- be plaintiff. Obviously, much can be done with cross-examining the person who received the promotion because if the plaintiff prevails, this would adversely affect the witness.

3) Motive. Motive is an urge that prompts a person to think and act in a certain way. Common motives are greed, love, hate, and revenge. When used correctly, they can be compelling because, like bias and interest, it taints the credibility of the witness regardless of the plausibility of their testimony. For example, the motive of revenge can be particularly effective in retaliation cases and whistleblower cases; particularly if the plaintiff can show he “blew the whistle” and was fired shortly after blowing the whistle. Revenge is a plausible theory for adverse employment action.

c. Prior convictions. Prior convictions are procedurally governed by Fed. R. Evid. 609. Rule 209 has two rules. First, any felony conviction or a conviction for dishonesty or false statements can be used to impeach the credibility of any witness. A conviction must generally be within ten years of the date the witness is examined. Second, there are special rules when the witness is a defendant in a criminal case, which will not be discussed here.

Prior convictions should be raised on cross, unless the witness volunteered it on direct examination. If the witness denies or equivocates on a prior conviction, you must be prepared to prove it with extrinsic evidence. If a witness volunteers only part of the information about conviction on direct, the cross-examiner may develop the remainder. This normally includes all facts appearing on the judgment or record of conviction. Items such as the jurisdiction, presiding judge, date of conviction, the crimes the witness committed, and the sentence imposed are all fair game for cross-examination. You should be careful with impeachment based on prior

4.46 convictions. Carefully follow the rules because improper impeachment of a prior conviction could result in a mistrial.

d. Prior bad acts. Prior bad acts are governed by Fed. R. Evid. 608(b). They can be admitted if the acts are “probative of truthfulness.” Bad acts that are probative of truthfulness in employment cases commonly include submitting a false employment application or other intentional fabrications. Importantly, prior bad acts are collateral. The examiner must normally take the witness’s answer and the bad act cannot be proved up extrinsically. As a result, you should pursue the cross-examination in order to get the witness to admit the bad act or show that any denial is simply not believable. You should ask about the bad act by revealing enough detail that lets the witness and jury know you’ve done your homework. If the witness thinks you have the goods on them, they’re more likely to admit the bad act.

e. Prior inconsistent statements (Commit, credit, and confront). Pointing out prior inconsistent statements is a commonly used impeachment method. Fed. R. Evid. 614 requires the witness to have an opportunity to admit, deny, or explain the prior inconsistent statement. A prior inconsistent statement can always be used to impeach.

f Contradictory Facts. You may wish to show the witness has testified to facts different than what the witness has claimed. This is impeachment by contradiction. For example, if you have evidence the witness was drinking at lunch prior to her reasonable suspicion drug test, you might ask the following questions:

Q: Did you drink any alcoholic beverage at lunch the day you were discharged? A: No.

If the witness denies the contradictory facts suggested in your cross-examination, you will have to prove it with extrinsic evidence, such as the bill from the restaurant and signature on the witness’s credit card showing she was drinking. This should only be done for collateral or material issues in the case.

10. Problem Witnesses. Witnesses can be problematic on cross- examination. There are certain recurring types of tactics witnesses sometimes use to frustrate cross-examination.

a. The evasive witness. Have you ever had this situation? The witness testifies nearly perfectly on direct examination. They have an excellent recall of facts, can observe well, and remember nearly every detail regarding the areas on which they were examined. Yet, on cross-examination, they begin to change their tone and demeanor. The witness repeats your question or asks that you repeat the question. They become slow on answering. They constantly answer, “I don’t know,” “I don’t remember,” “I’m not sure,” “I might,” “Maybe,” or otherwise avoid answering directly.

4.47 Keep in mind this evasive activity makes a terrible impression on the jury. Don’t become frustrated and argumentative with the witness. Instead, extract as many “I can’t remember” responses as possible. Once you’ve made the point, ask the witness if they have difficulty hearing. You can also ask if they have difficulty understanding your questions. Confront the witness with questions such as “That didn’t answer my question, did it?” Use questions that are the same or similar to those asked on direct examination. If the witness is evasive on those same questions, the jury will quickly understand the witness is not believable or otherwise playing games.

b. Argumentative witnesses. The argumentative witness is the opposite of the evasive witness. Instead of refusing to give any testimony, this witness wants to answer your questions with an answer that suits himself. He will argue over everything. The witness will argue with you or answer your question with a question. In this case, try to control the witness. Make the questions very short and clear. Repeat the question and insist on a responsive answer. Once being fair with the witness and giving them a chance, the jury will comprehend the witness is insincere and discount his credibility accordingly.

Avoid cutting the witness off. Juries inherently dislike lawyers who constantly cut witnesses off because it appears the lawyer is trying to keep something from the jury. This adversely affects the lawyer’s credibility. The better technique is to demonstrate to the jury that the witness is not playing by the rules.

Another effective approach is to establish a “contract” with the witness while on the stand. For example:

Q: Miss Jones, before I begin my cross-examination, I’d like to discuss how we’re going to go about it. I’m going to ask you questions as clearly as I can. If it’s not clear, let me know, all right? A: Okay. Q: If my questions are clear, you’ll answer them simply and directly, is that fair? A: Yes. Q: Can we agree on this? A: Yes.

Once you have laid it out this way in front of the jury, it’s difficult for the witness not to agree to this arrangement. Then if the witness becomes evasive or argues with you, the jury will view the witness as reneging on the contract.

c. Apparent cross examinations. While cross-examination is clearly not required, most of the time the jury will expect some type of cross- examination. The more important the witness, the more the jury expects cross- examination.

4.48 Sometimes witnesses surprise you. As a result, you might not have a realistic expectation of getting favorable admissions or any other ammunition for conducting an effective or discrediting cross-examination. You have no cross- examination that will work. If this is the case, you may conduct an “apparent” cross- examination. Fruitful areas for apparent cross-examinations are as follows:

• Who asked him to be a witness: • Was he subpoenaed? • With whom has he discussed the case? • Did he discuss his testimony with a lawyer? • Did he attend any meetings with other witnesses present? • Did he read any materials to prepare his testimony? • Did he make any notes about the incident? • Did he read any depositions or prior statements? • Did he know any of the parties or witnesses? • Was he compensated as a witness?

The above topics do not necessarily attack the witness’s testimony. However, they are legitimate enough to create the impression of an effective cross-examination and may discredit testimony.

4.49

Sources

Mauet, Thomas A., Trial Techniques, (Fifth Edition, 2000)

Lubet, Stephen, Modern Trial Advocacy: Analysis And Practice (NITA 1993)

Goldwick, Robert M., The Staging of Employment Drama, Winning Trial Techniques (2010)

Pitt, Michael L. and McGehee, Cary S., Winning Trial Techniques And The Importantcet of Themes, American Bar Section Labor and Employment Law (2010)

Husband, John M. and Liscoe, Karen O., Getting Inside The Mind Of The Factfinder: Creating Compelling Themes In Employment Litigation (2010)

Waites, Richard, Juror Perceptions and Trial Strategy in Employment Cases, The Advocates (2003)

Federal Rules of Evidence

4.50 WORKING WITH EXPERTS: USING STATISTICAL EVIDENCE IN EMPLOYMENT DISCRIMINATION CASES

Sam Smith, Tampa Marc Bendick, Jr., Ph.D., Washington, D.C.

Working with Experts: Communicating with Experts: What Is and Is Not Protected

Sam J. Smith Burr & Smith, LLP 111 2nd Avenue NE, Suite 1100 St. Petersburg, FL 33701 (813) 253-2010 [email protected] www.burrandsmithlaw.com

These materials will examine how courts have treated communication between the expert and counsel. The vast majority of the cases are from federal courts discussing the 2010 amendments to the Federal Rules of Civil Procedure. This paper serves as a review of the commentary and case law developing on these two key changes in the 2010 amendments affording protections to attorney-expert communications and draft reports and what this means, if anything, for your ability to exchange information candidly with your testifying experts without the risk of disclosure.1 Florida state court’s treatment of these issues will also be briefly discussed.

I. Federal Case Law

On December 1, 2010, significant changes were made to Federal Rule of Civil Procedure 26 as it relates to expert witness disclosures. The primary intent of the 2010 amendments, as explained in its advisory committee notes, was to make it “explicit” that attorney-expert communications (with certain exceptions) and draft reports are protected work-product. See Fed. R. Civ. P. 26, Notes of Advisory Committee on 2010 amendments (“2010 Advisory Committee Notes”). In fact, the 2010 amendments were enacted to change the “undesirable effects” of the 1993 amendments which were often relied on by courts to require disclosure of all attorney- expert communications and draft reports. See Fialkowski v. Perry, 2012 U.S. Dist. LEXIS 91165 (E.D. Pa. June 29, 2012).

Prior to the 2010 amendments to Rule 26, and rightfully still as the changes are in their infancy, attorneys have been cautious in their communications with experts and have operated under the general assumption that all communications with testifying expert witnesses may be discoverable. Prior to the 2010 amendments, Rule 26(a)(2)(B)(ii) required disclosures of “all data or other information” considered by the witness in forming his or her opinion, which resulted in many courts ordering disclosure of all attorney-expert communications and draft reports. The advisory committee notes for the 2010 amendments recognized that this “routine discovery into attorney-expert communications and draft reports has had undesirable effects,” and that because of it, “[c]osts have risen” as “[a]ttorneys may employ two sets of experts—one for purposes of consultation and another to testify at trial” to avoid disclosure of “sensitive and

1 The 2010 amendments should apply to pending cases if application is “just and practicable.” When “just and practicable,” courts have applied the 2010 amendments to pending cases. See e.g. Daugherty v. Am. Express Co., 2011 U.S. Dist. LEXIS 30486, 12-14 (W.D. Ky. Mar. 23, 2011) (applied to case pending for three years).

5.1 confidential case analysis.” Thus, Rule 26(a)(2)(B)(ii) was amended to limit disclosures to “the facts and data” considered by the witness in forming their opinions and further enacted new Rule 26(b)(4)(B) and (C) to explicitly state that draft reports and certain attorney-expert communications are protected work product. These new rules do not limit inquiry of the “expert’s testing of material involved in litigation and notes of any such testing.” 2010 Advisory Committee Notes. Counsel remain “free to question expert witnesses about alternative analyses, testing methods, or approaches to the issues” to evaluate “whether or not the expert considered them in forming the opinions expressed.” Id. Therefore, these new rules are not to affect Daubert. Id.

A. RULE 26(b)(4)(C): EXPRESSLY PROTECTING COMMUNICATIONS BETWEEN ATTORNEYS AND EXPERTS

Even though Rule 26(b)(4)(C) expressly states that communications, regardless of form, between attorneys and their reporting experts are work-product protected,2 carved out of Rule 26(b)(4)(C), are three specific exceptions, including communications that:

(i) relate to compensation for the expert's study or testimony;

(ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party's attorney provided and the expert relied on in forming the opinions to be expressed.

Any communication with testifying experts that do not fall under one of these three exceptions is protected work-product unless a party seeking such discovery makes the showing that it has a substantial need for the discovery and cannot obtain the substantial equivalent without undue hardship, as specified in Rule 26(b)(3)(A)(ii).3 i. Communications that relate to compensation for expert’s study or testimony:

2 Fed. R. Civ. P. 26(b)(4)(C) states: “Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications. A party may not ordinarily “discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)” absent a showing by the requesting party of “substantial need for the materials to prepare its case” and an inability, “without undue hardship, [to] obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(B)(3)(A). “If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B). 3 But see Graco, Inc. v. PMC Global, Inc., 2011 U.S. Dist. LEXIS 14717, 29-31 (D.N.J. Feb. 14, 2011) (“Even if the party seeking discovery of information otherwise protected by the work product doctrine has made the requisite showing, ‘courts must still protect against the disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney and his agents.’”).

5.2

First, communications that relate to compensation for expert’s study or testimony extends to all compensation, including any benefits derived from the expert’s study or testimony such as further work obtained if there were to be a successful result, are discoverable. The purpose of this exception is to not curtail examination into potential bias. 2010 Advisory Committee Notes.

ii. Identify facts or data that the party's attorney provided and the expert considered in forming the opinions to be expressed:

Second, communications provided by attorneys to experts identifying facts or data the expert considered in forming their opinions are discoverable. The advisory committee notes for the 2010 amendments explain that “‘facts or data’ is meant to limit disclosure to material of a factual nature” and specifically excludes “theories or mental impressions of counsel.” There are few decisions evaluating what constitutes “facts and data.” However, “‘facts or data’ [is to] be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients.” 2010 Advisory Committee Notes. The 2010 amendments did not alter the definition of “considered” which requires disclosure of “any information furnished to a testifying expert that such an expert generates, reviews, reflects upon, reads, and/or uses in connection with the formulations of his opinions, even if such information is ultimately rejected.” Fialkowski, 2012 U.S. Dist. LEXIS 91165, *7-8 (E.D. Pa. June 29, 2012) (internal citation omitted).

In In re Asbestos Prods. Liab. Litig., 2011 U.S. Dist. LEXIS 143009, *18-25 (E.D. Pa. Dec. 13, 2011), the court determined, following in camera review, that transmittal letters attorneys provided expert physicians with blanks that the physicians were to complete regarding individuals exposure, medical, and smoking histories were "communications" that identify "facts or data" and thus were discoverable. In Northwest Home Designing, Inc. v. Golden Key Constr., Inc., 2012 U.S. Dist. LEXIS 17033, *9 (W.D. Wash. Feb. 10, 2012), the court found information given to a forensic accountant relevant to the evaluations of the plaintiff’s damages, including electronic information from QuickBooks, as well as physical records provided to him by defendant, were discoverable "facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed . . ." Fed. R. Civ. P. 26(b)(4)(C)(ii).

In Sara Lee Corp. v. Kraft Foods, Inc., 273 F.R.D. 416, 420-421 (N.D. Ill. 2011), the court found that the requested communications were not “communications [that] contain facts or data . . . that [the expert] could have considered in assembling his expert report.’’ Following in camera review, the court determined that communications between the attorneys and the expert which concerned advising the defendants on how they might conduct a pilot of an advertisement, did not include the communication of facts or data considered in the expert’s opinion. The court recognized that while “[s]uch expert-attorney communications arguably may have been discoverable under the pre-amendment Rule 26 . . . [it was] no more [after the amendments].”

In Fialkowski, because the expert admitted to considering the requested materials, including the plaintiff’s (who was also an attorney) thirty-nine page assessment of discovery documents, the court found the “facts or data” the expert considered or the assumptions the expert relied on in these materials to be discoverable under Rule 26(b)(4)(C). The court ordered

5.3 the plaintiff to produce “the parts” of the requested documents that fell within the exceptions. At the very least this case exhibits that courts are willing to permit redactions of privileged materials and may not require the wholesale production of a document that may contain facts as well as privileged communications.

In United States ex rel. Ryan v. Staten Island Univ. Hosp., 2013 U.S. Dist. LEXIS 6043, *5-6 (E.D.N.Y. Jan. 15, 2013), the court determined that emails reviewed by the expert were protected as work product because here, they were “not comprised of facts, data, or assumptions considered by [the doctor] in forming the opinions about which he will be testifying.”

iii. Identify assumptions that the party's attorney provided and the expert relied on in forming the opinions to be expressed

Identifying assumptions provided by attorneys to their experts and that the expert relied on in forming their opinions are discoverable. “[G]eneral attorney-expert discussions about hypotheticals, or exploring possibilities based on hypothetical facts, are outside this exception.” 2010 Advisory Committee Notes. The expert must have relied on the assumptions for the communications to be discoverable.

The communications protected by Rule 26(b)(4)(C) extends to communications between attorney and an expert’s assistants. See In re Republic of Ecuador & Diego Garcia Carrion, 2012 U.S. Dist. LEXIS 157497, *7-8 (N.D. Fla. Nov. 2, 2012) (finding “[c]ommunications between [defendant’s] attorneys or staff members and [the expert] or his staff members are protected— even if other experts or their staff members participated in or incidentally received copies of the communications— unless the communications come within the three exceptions set out in the rule”). Also, it does not protect communications among experts, without the attorney. The Eleventh Circuit affirmed this opinion in Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1195 (11th Cir. 2013), determining that “Rule 26 provides no basis for this, neither before nor after the 2010 Amendments” for withholding the expert’s personal notes and communication with other experts.

B. RULE 26(b)(4)(B): DRAFT REPORTS

Under new Rule 26(b)(4)(B) work product protection attaches to all draft reports and disclosures required under Rule 26(b)(3)(A) and (B), regardless of the form in which the draft is recorded. Such protected disclosures include draft worksheets prepared by the experts or the expert’s assistants. Id. However, this protection does not extend to the expert's own development of the opinions to be presented outside of draft reports. See 2010 Advisory Committee Notes; see Etherton v. Owners Ins. Co., 2011 U.S. Dist. LEXIS 21992, *5-7 (D. Colo. Feb. 18, 2011) (protecting an expert’s ‘‘working notes’’ from disclosure because, inter alia, the trial preparation protections of the amended rules apply to drafts of any expert report, regardless of form); see also Republic of Ecuador v. Bjorkman, 2012 U.S. Dist. LEXIS 709, at *17 (D. Colo. Jan. 4, 2012) (“Clearly, it is the intention of the rules committee to protect the mental impressions and legal theories of a party’s attorney, not its expert.”). While seemingly contrary to the purpose of the amended rules to reduce costs and the need for duplicative

5.4 consulting experts, to encourage more open exchange and dialogue between attorneys and their experts, with the result of improved quality of testimony, several courts have found that expert notes are not protected draft reports under Rule 26(b)(4)(B).

In In re Application of Republic of Ecuador, 2012 U.S. Dist. LEXIS 32135, *12-14 (N.D. Cal. Mar. 9, 2012), the court found notes, task lists, outlines, memoranda, presentations, and draft letters authored by the expert had to be disclosed because they were not protected as draft reports and were not independently protected as work product. See Fed. R. Civ. P. 26(b)(4) (2010 Advisory Committee Notes) ("Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be offered by the expert or the development, foundation, or basis of those opinions. For example, the expert's testing of material involved in litigation, and notes of any such testing, would not be exempted from discovery by this rule."). The court directed that “[t]o the degree Respondents specifically assert certain documents are draft reports . . . or believe other materials that are the subject of this dispute properly fall under the protection afforded to draft reports, they shall expressly explain how each document or documents fall within the protection and shall provide the documents to this Court for an in camera review within five days of the date of this Order.”

In In re Asbestos Prods. Liab. Litig., 2011 U.S. Dist. LEXIS 143009, *18-25 (E.D. Pa. Dec. 13, 2011), the court ordered disclosure of testifying physicians handwritten notes, finding they were not protected as “draft reports” but rather reflected the physicians own interpretations of the results he was retained to analyze.

In In re Republic of Ecuador & Diego Garcia Carrion, 2012 U.S. Dist. LEXIS 157497, 8- 11 (N.D. Fla. Nov. 2, 2012), the court interpreted the 2010 amendment’s silence on “an expert's own notes that are not sent to an attorney and are not part of a draft report . . . [a]nd an expert's communications . . . with other testifying experts, not also with attorneys” supported the finding “that under the rules as they now stand, these materials are not protected.” Id. at *8. In support of this interpretation, the court recognized that it was the “widespread view” prior to the 2010 amendments that “the attorney-client privilege and work-product doctrine did not protect a testifying expert's own notes or communications with another testifying expert.” Id. The court found, that this being the longstanding view, and with “[t]he care with which rules amendments are crafted and reviewed makes it virtually impossible that this was an oversight.” Id. Even though the court recognized that permitting an expert’s notes to be discoverable would be contrary to one of the issues the 2010 amendments were enacted to avoid, the hiring of two experts, one to consult and one to testify to avoid protection against discovery, did not protect the disclosure of the notes under the work-product doctrine because these protections were not made explicit in the Rules. Id. at *9-10. In D.G. v. Henry, 2011 U.S. Dist. LEXIS 38709, *8 (N.D. Okla. Apr. 8, 2011), the defendant sought an exact copy of the case files reviewed by the expert, that the defendant had produced to the plaintiffs in the course of discovery, arguing that the case files may have notations or highlights on them. The court determined that notations or highlights on the case files are not facts or data and are protected under Rule 26(a)(2)(B)(ii). Id. However, the court did rule that statutes and policies considered by the expert in forming his opinions are facts or data which must be produced or at least a citation to the specific statutes and policies, if they are publicly available and readily accessible. Id. at *8-9. In addition, the court determined that

5.5 summaries prepared by the expert’s “readers” or assistants who obtained facts from case files, were “material considered by the expert that contains factual ingredients” and were “not drafts of the report protected from disclosure by Rule 26(b)(4)(B). Id. at *9.

In Windowizards, Inc. v. Charter Oak Fire Ins. Co., 2015 U.S. Dist. LEXIS 38230, *5 (E.D. Pa. Mar. 26, 2015), the court determined that the expert’s handwritten notes on a report were not protected under Rule 26(b)(4)(C) because there was “no indication that they are part of a dialog between defense counsel and him.” The court went on to clarify that the notes are also not protected as draft reports because the notes were made independent from communication with counsel. Id. at *5-6.

In Wenk v. O'Reilly, 2014 U.S. Dist. LEXIS 36735, *16-20 (S.D. Ohio Mar. 20, 2014), the court did not ultimately rule as to whether the expert notes were protected as draft reports, rather it required the defendant to produce the report in camera for inspection. In making this ruling the court provided several guidelines as to whether an expert’s notes may be protected as a draft report. The court first noted that “[in a case where any kind of testing, analysis or observation of a tangible item is involved - for example, testing the braking system of a vehicle to see if it is working properly, or analyzing the chemical composition of a medication - the notes taken by the expert during that procedure are clearly not ‘draft reports.’” Because “[if] it were otherwise, everything an expert writes down, no matter when in the opinion-forming process that occurs, and no matter what the reason, would qualify as a “draft.’” The court went on to suggest that this type of treatment should be no different for intangible items. As the court reasoned, “[i]n a case where the factual matter to be examined and analyzed consists of witness statements, depositions, or written policies, why should the notes or preliminary observations made by a reviewing expert be treated differently?” The court further warned that “there is a substantial risk in interpreting the concept of “draft report” too broadly.” Id. at *17. The court further cautioned, “it is important to remember that the protection against disclosure in the context of draft reports and communications with counsel is designed not to shield the expert's reasoning process from discovery, but to guard against the disclosure of attorney work product and to facilitate the communication process between attorney and expert.” Id. at *18.

II. FLORIDA CASE LAW

Florida Rule of Civil Procedure 1.280(5) allows discovery of facts known and opinions held by experts, otherwise discoverable as relevant and not privileged, and acquired or developed in anticipation of litigation or for trial. The rule further articulates that a party may obtain 1) the scope of employment in the pending case and the compensation for such service; 2) the expert's general litigation experience, including the percentage of work performed for plaintiffs and defendants; 3) the identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial; and 4) an approximation of the portion of the expert's involvement as an expert witness. Fla. R. Civ. P. 1.280(5)(A)(iii)(1-4). In addition, “[a] party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” Fla. R. Civ. P. 1.280(5)(B).

5.6 Unlike the current Federal Rules, Florida Rules of Civil Procedure remain silent as to whether communications between counsel and a testifying expert are discoverable. The case law is equally uninstructive.

Florida courts have routinely found that facts and opinions held by a non-testifying expert are protected by the work product privilege. See e.g. City of Jacksonville v. Rodriguez, 851 So. 2d 280, 282-83 (Fla. Dist. Ct. App. 2003)(“even if an expert witness has relevant knowledge and opinions, the adverse party is limited in its ability to discover them under the general work product rule”); Carrero v. Engle Homes, 667 So. 2d 1011, 1012, 1996 Fla. App. LEXIS 1048, 21 Fla. L. Weekly D 438 (Fla. Dist. Ct. App. 4th Dist. 1996)(“where a party has legitimately not yet decided which retained experts will be called at trial, disclosure should be protected in accordance with rule 1.280(b)(4)(B)); Ruiz v. Brea, 489 So. 2d 1136, 1137 (Fla. Dist. Ct. App. 1986)(requiring disclosure of the name of the expert who was not going to testify, but protecting from disclosure "facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness”).

However, the Supreme Court of Florida has made clear that “if attorney work product is expected or intended for use at trial, it is subject to the rules of discovery” Northup v. Herbert W. Acken, M.D., P.A., 865 So. 2d 1267, 1272 (Fla. 2004). As such, privileged documents and work-product may become discoverable once provided to an expert. See generally, Nan H. Mullins v. Tompkins, 15 So. 3d 798, 800-02 (Fla. Dist. Ct. App. 2009)(preventing disclosure of privileged documents, “[e]ven assuming that work product and privileged communications provided to an expert witness become discoverable if used as a basis for the expert's opinion, when there was no indication that the expert relied upon, or even read, the privileged documents). No Florida court to our knowledge has further addressed or decided the issue in Mullins. Therefore, extreme caution should be taken when communicating and disclosing information to testifying experts to ensure that privileged documents or work-product do not become discoverable upon disclosure to them. Because Florida has not adopted the 2010 amendments, practitioners should, for all practical purposes, treat communications with experts in Florida cases as they would have in federal court pre-2010 amendment.

CONCLUSION

In working with expert witnesses, it is important from the onset of the relationship to determine what communications with experts will be privileged and which communications with experts are discoverable. Furthermore, as your expert prepares his or her report, it is important to advise your expert which scribbles, jots, notes, and memos may be at risk for disclosure. In Florida it is especially important to determine at the onset of the relationship whether the expert will be a testifying or non-testifying expert as it affects the caution that you should implore in communicating with them.

5.7 8/21/2015

Why Use Statistical Evidence in Employment Discrimination Cases?

Marc Bendick, Jr., Ph.D. Bendick and Egan Economic Consultants, Inc. Washington, DC www.bendickegan.com

Statistical Evidence to Assess Liability

Layoff in a High Tech Manufacturing Company

Age < 40 Age 40 +Ratio All Employees 4.5% 10.3% 2.3 : 1 Level Managers 1.4% 4.9% 6.8 : 1 Engineers 3.6% 10.3% 2.9 : 1 Hourly 6.7% 10.5% 1.5 : 1 Function Design 3.0% 8.6% 2.9 : 1 Administration 7.3% 13.1% 1.8 : 1 Manufacturing 5.5% 10.7% 1.9 : 1 Location Plant 1 6.9% 11.7% 3.7 : 1 Plant 2 2.0% 10.6% 5.3 : 1 Plant 3 0.9% 8.3% 9.2 :1

Statistical Evidence to Assess Non‐Discriminatory Explanations

Wage Discrimination in a Nation‐wide Retailer

Compare Average Annual Earnings Men: $70, 407 Women: $62,711 Difference: ‐ $ 7,696

Multiple Regression Statistical Analysis Has a College Degree + $ 4,792 Additional Year of Experience + $ 466 Received High Performance Rating + $ 2,960 Completed Management Training + $ 9,727 African American ‐ $ 1,308 Woman ‐ $ 1,703

5.8 1 8/21/2015

Statistical Evidence to Replace Missing Data

Hiring in a Temporary Staffing Agency

• Agency kept No Records of Applicants’ Ethnicity Using Census data, computed that Latinos are 16% of persons in the local labor market labor who were qualified for and likely to be interested in the agency’s job vacancies (in the labor force, high school graduate, earning < $30,000/year)

• Agency Referral Records Did Not Indicate Ethnicity

Using Census data on probability each referred name was Latino (Gonzalez 98%, Peterson 2%), computed that Latinos received 1% of work hours.

These Examples Illustrate that Statistical Evidence Can…

• supplement individual evidence • be more accurate than attorney’s calculations • be more credible than attorney’s calculations • be applied in individual or class cases • address liability and damages • be useful to both plaintiffs or defendants

5.9 2

1 Brad Seligman (State Bar No. 083838) Jocelyn D. Larkin (State Bar No. (State Bar No. 110817) 2 Sarah Varela (State Bar No. 234640) THE IMPACT FUND 3 125 University Avenue Berkeley, CA 94710 4 Telephone: (510) 845-3473 Facsimile: (510) 845-3654 5 James M. Finberg (State Bar No. 114850) 6 Bill Lann Lee (State Bar No. 108452) Lexi J. Hazam (State Bar No. 224457) 7 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Embarcadero Center West 8 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 9 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 10 Steve Stemerman (State Bar No. 067690) 11 Elizabeth A. Lawrence (State Bar No. 111781) DAVIS, COWELL & BOWE, LLP 12 595 Market Street, #1400 San Francisco, CA 94105 13 Telephone: (415) 597-7200 Facsimile: (415) 597-7201 14 Attorneys for Plaintiffs and the Proposed Class 15 16 UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA 18 19 SHIRLEY “RAE” ELLIS, LEAH Case No. C-04-3341 MHP 20 HORSTMAN, and ELAINE SASAKI on behalf of themselves and all others DECLARATION OF 21 similarly situated, MARC BENDICK, JR., PH.D. 22 Plaintiffs, 23 v. 24 COSTCO WHOLESALE CORPORATION, 25 Defendant. 26 27 28 - 1 -

5.10

1 2 I, Marc Bendick, Jr., Ph.D., declare: 3 I. INTRODUCTION 4 1. I am a principal of Bendick and Egan Economic Consultants, Inc., 4411 Westover 5 Place, N.W., Washington, D.C. 20016. I earned a Ph.D. in economics from the University of 6 Wisconsin in 1975 and have engaged in the full-time practice of economics, specializing in 7 employment and related issues, for more than 30 years. Over that period, I have been a 8 researcher, policy analyst, university lecturer, and consultant to employers in the public, 9 corporate, and non-profit sectors. I am the author, co-author, or editor of more than 100 pieces of 10 scholarly research, including books, monographs, articles in refereed journals, and Congressional 11 testimony. My resume is provided as Attachment A. 12 2. My professional activities have included involvement in litigation on employment 13 discrimination, including analysis of: 14 • the availability of job-seekers in different demographic groups; 15 • processes for recruiting, hiring, training, assigning, evaluating, 16 compensating, promoting, and discharging employees; 17 • policies and practices for managing a demographically-diverse 18 workforce; and 19 • economic damages associated with denial or diminution of employment 20 opportunities. 21 Attachment B lists the 137 cases in which I have participated, on behalf of both employers and 22 employees. I have been qualified and testified as an expert in 17 federal courts and nine state 23 courts or administrative tribunals. 24 3. Throughout my work in this case, I have utilized modes of analysis, computational 25 procedures, information sources, and standards of care identical to or comparable to those I use in 26 my scholarly research, and I apply theories, models, concepts, reasoning, and assumptions that 27 command general acceptance among my professional peers. I hold the opinions I present in this 28 report to a reasonable degree of scientific certainty. - 2 -

5.11

1 4. In my work on this case to date, I have utilized or had access to the documents and

2 other information sources listed in Attachment C. 3 5. For my work on this case, I am being compensated at the rate of $295 per hour plus 4 out-of-pocket expenses.

5 II. MY ASSIGNMENT 6

7 6. At the request of plaintiffs’ counsel, plaintiffs’ expert Dr. Richard Drogin provided

8 to me the data in Table 1 on the representation of women among four levels of managers in

9 Costco retail stores nation-wide.1 10 7. My assignment in this report is to develop “benchmarks” for the expected 11 representation of women at these four levels in Costco based on their representation in 12 comparable positions in comparable firms other than Costco. These benchmarks are intended to 13 14 complement the analyses by Dr. Drogin of expected representation of women among Costco 2 15 managers based on their representation among Costco’s internal workforce.

16 8. In the sections which follow, I develop six alternative benchmarks for each Costco

17 in-store management job level, and I discuss the strengths and limitations of each. 18 9. Each of these benchmarks is based on employment patterns among retailers. 19 Costco’s principal activity is retailing – that is, purchasing merchandise and then selling it in 20

21 22 1 Consistent with the figures in Table 1, a company document entitled Costco CY04 Demographics Warehouse Staff 23 (Bates CRE 0142441) presents the following “percent female” numbers as “current 2/11/05”:

24 Whse Mgr: 16.2% Asst Whse Mgr: 16.8% 25 Staff Mgrs: 28.0% Other Salaried 31.6% 26 2 The benchmarks I present are currently being used to supplement and confirm the plausibility of calculations by 27 Dr. Drogin. My report therefore does not include calculations of statistical significance or of “shortfalls” between Costco’s actual representation and expected representation. Such calculations are feasible and may be completed at a 28 later stage in this litigation.

- 3 - 5.12

2 TABLE 1 3 THE REPRESENTATION OF WOMEN AT FOUR LEVELS OF COSTCO IN-STORE MANAGERS, 1999-2004 4 (a) (b) (c) (d) (e) (f) (g) (h) 5 Costco Average, Job 1999 2000 2001 2002 2003 2004 1999- 6 Level 2004 3 7 Store Managers 11.8% 10.7% 11.1% 13.7% 13.6% 16.5% 12.9% Assistant Managers4 16.5% 16.9% 15.9% 16.6% 16.8% 17.1% 16.6% 8 Staff Managers5 27.3% 26.5% 28.4% 28.0% 28.9% 28.0% 27.9% 9 Other Salaried Managers6 28.8% 29.7% 29.3% 30.5% 30.3% 31.1% 30.0% 10 Weighted Average 25.9% 26.4% 26.2% 27.0% 27.2% 27.6% 26.7% 11

12 relatively small quantities to individuals for personal use, to very small businesses for resale, or a 13 combination of the two.7 Although Costco uses the term “wholesale” in its corporate name and 14 15 3 The Costco job title is Manager-General (job code 2000). Based on the rough correspondence between the number 16 of employees with this title and the number of Costco retail stores, I infer that there is generally one person with this title per store. My assumptions about staffing, as well as the labels attached to Costco job levels, are based largely on 17 the Deposition of Costco Senior Vice President Dennis R. Zook, March 9, 2006, especially pp. 52-64.

18 4 The Costco job title is Manager–Assistant General (job code 2001). In Dr. Drogin’s tabulations, there are about two persons at this level for every person at the store manager level. 19 5 The Costco job titles in this category are: Manager-Merchandise (job code 2002), Manager-Administration (2003), 20 Manager-Front End (2004), and Manager-Receiving (2005). In Dr. Drogin’s tabulations, there are about four persons at this level -- one with each of the four titles -- for each person at the store manager level. 21 6 The Costco job titles in this category are: Manager–Shipping (job code 2006), Manager-Shipping/Receiving (2007), 22 Manager–Business Delivery (2008), Manager–Foods (2009), Manager-Non-Foods (2010), Manager-Hardlines (2011), Manager-Center (2012), Manager-Meat (2013), Manager-Bakery (2014), Manager-Facilities (2015), 23 Manager-Fleet (20116), Manager-Membership/Marketing (2017), Manager-Production (2018), Manager-Quality Control (2019), Manager-Optical (2020), Manager-Photo Lab (2021), Manager-Hearing Aid (2022), Manager-Tire 24 Center (2023), Manager-Service Deli (2024), Manager-Food Court (2025), Assistant Manager-Merchandise (2050), Assistant manager-Receiving (2051), Assistant Manager-Front End (2052), Assistant Manager-Bakery (2053), and 25 Manager in Training (2100). In Dr. Drogin’s tabulations, there appear to be slightly less than 10 persons at this level for each employee at the store manager level. 26 7 In 2005, Costco had approximately 16 million individual members (i.e., individual customers) and 5 million 27 business members (business customers). See Costco Wholesale Corporation, Annual Report to the Securities and Exchange Commission (Form 10-K) for the Fiscal Year Ended August 28, 2005, p. 5 (available through the “Investor 28 Relations” link on the home page of Costco’s website, http://www.costco.com). These business customers include small businesses whose owners also use their memberships for personal purchases. - 4 - 5.13

1 refers to its retail stores as “warehouses,” the firm should not be compared against true

2 wholesalers, whose principal activity is distributing goods in large quantities to business firms or 3 similar organizations for use in producing other goods or services or for resale on a more 4 substantial scale. As the U.S. Department of Labor succinctly states:8 5 Only firms that sell their wares to businesses, institutions, and governments are 6 considered part of wholesale trade. As a marketing ploy, many retailers that sell 7 mostly to the general public present themselves as wholesalers. For example, “wholesale” price clubs, factory outlets, and other organizations are retail 8 establishments, even though they sell their goods to the public at “wholesale prices.” 9

10 10. For purposes of analyzing the employment of retail managers, the most direct 11 comparators to Costco are “general merchandise stores” -- retailers which sell a broad range of 12 merchandise, rather than a single specialized line, and whose stores tend to be sufficiently large 13 that they are organized into multiple departments. In filing its “EEO-1 reports”9 with the U.S. 14 15 Equal Employment Opportunity Commission, Costco places itself within Standard Industrial

16 Code (SIC) 539, “Miscellaneous General Merchandise Stores.”10 Equally, in its most recent

17 annual report to the Securities and Exchange Commission, Costco discusses as its most direct 18 competitors general merchandise retailers such as traditional department stores (e.g., Sears, J.C. 19 Penny) and discount general merchandise firms such as Wal-Mart, Target, and Kohl’s.11 20 21 22

23 8 Bureau of Labor Statistics, U.S. Department of Labor, Career Guide to Industries, Wholesale Trade, p. 2 (available at http://www.bls.gov/oco/cg/cgs026.htm). 24 9 These reports are described in Section V, below. 25 10 Under the new North American Industrial Classification System (NAICS), which is gradually replacing the SIC 26 system, Costco places itself in category 45291, “Warehouse Clubs,” which is a sub-category of category 452, “General Merchandise Stores.” 27 11 Costco Wholesale Corporation, Annual Report to the Securities and Exchange Commission (Form 10-K) for the 28 Fiscal Year Ended August 28, 2005, p. 7.

- 5 - 5.14

1 11. Costco also describes its competitors more broadly than general merchandise

2 stores. For example, Costco’s Senior Executive Vice President Richard DiCerchio stated in a 3 deposition:12 4 We consider the world our competitors. You name them, they’re our 5 competitors. We figure that Sam’s is a competitor, Wal-Mart is a competitor, Target is a competitor, Home Depot is a competitor, Albertsons 6 is a competitor, QFC is a competitor, anybody in retail is a competitor, 7 anybody that goes after retail dollars is a competitor.

8 In this spirit, in its most recent Annual Report to the Securities and Exchange Commission,

9 Costco includes as competitors low-cost retailers selling products overlapping only part of

10 Costco’s product range—such as supermarkets, Lowe’s, Home Depot, Office Depot, PetSmart, 11 Staples, Best Buy, and Barnes and Noble.13 12 12. Although Costco may consider all retailers to be Costco competitors, I believe 13 that this broad category is less relevant than general merchandise stores as comparators for 14 15 managerial employment because of differences in job duties and career paths between general 16 merchandise stores and specialty retailers. Nevertheless, two of the five benchmarks I develop

17 are based on all retailers, to reflect this aspect of Costco’s self-description. 18

22 23 12 Deposition of Richard DiCerchio, April 24, 2006, p. 105. Using strikingly similar words, Costco’s CEO, Jim 24 Sinegal, stated (Deposition of Jim Sinegal, April 29, 2006, p. 128):

25 We consider everyone who is in the retail business our competitor. You know, obviously the major competitors are people like Target and Home Depot, and Sam’s and Wal-Mart and the super stores 26 and Sears and Sears Essentials and supermarkets, Lowes. We shop all these people on an ongoing basis because we consider them competitors. 27 13 Costco Wholesale Corporation, Annual Report to the Securities and Exchange Commission (Form 10-K) for the 28 Fiscal Year Ended August 28, 2005, p. 6.

- 6 - 5.15

1 III. FIRST BENCHMARK: 2000 CENSUS – GENERAL 2 MERCHANDISE STORES 3 4 13. The first benchmark I have developed is based on the most recent decennial

5 Census of the U.S. population, conducted in 2000. In the Census, persons in the labor force are

6 asked to identify their usual occupation and the industry of their employer. From these responses, 7 the U.S. Bureau of the Census, in consultation with the U.S. Equal Employment Opportunity 8 Commission, the U.S. Office of Federal Contract Compliance, the U.S. Department of Justice, 9 and the U.S. Office of Personnel Management, publishes an “EEO Special File” designed 10 11 specifically to assist employers, government regulators, and others establish benchmarks for the 12 expected representation of women and minorities in several hundred occupations and industries.

13 This file is publicly available at the Census Bureau’s website, http://www.census.gov/eeo2000/ 14 index.html. 15 14. From this website, I extracted the benchmark figures shown in Column (d) of 16 Table 2, based on Census data for persons employed as managers in general merchandise stores. 17 These figures range from 34.1% female at the highest level of manager within these stores 18 19 (General and Operations Manager) to 63.9% at the lowest level (First Line Supervisors of Sales

20 Workers).14 21

22 14 Defendant’s expert Dr. Ali Saad (in Expert Report of Ali Saad, Ph.D., no date, paragraphs 103- 104) argues that I selected an incorrect Census job title to correspond to one of these four Costco 23 job levels. For Staff Managers, Dr. Saad believes that the corresponding Census job title should be “First Line Supervisors/Managers of Retail Sales Workers” (Census Code 470), instead of the 24 title I used, “Marketing and Sales Managers” (Census Code 005).

25 I have considered Dr. Saad’s suggestion carefully (see Second Report of Marc Bendick, Jr., Ph.D., July 22, 2006, paragraphs 14-18) but conclude that I do not yet have sufficient 26 information on the duties and responsibilities of the Costco position to resolve this difference of opinion. However, the choice makes very little difference, because the benchmarks under either 27 Census code are very similar. For benchmark 1, my choice of Census code leads to an expected representation of women of 63.2%, whereas his choice leads to a figure of 63.9% -- an increase of 28 0.7 percentage points. Under benchmark 2 (see Table 3, below), my choice leads to a benchmark of 42.5%, whereas his leads to 41.2%, a decrease of 1.3 percentage points. Such differences do - 7 - 5.16

1 TABLE 2

2 THE REPRESENTATION OF WOMEN AMONG 3 MANAGERS AT GENERAL MERCHANDISE STORES NATIONWIDE, ACCORDING TO THE 2000 CENSUS 4 (a) (b) (c) (d) (e) 5 Female Female Ratio of Representation Closest Representation Costco 6 Costco at Costco, Corresponding in General Female % 7 Job 1999-2004 Census Merch andise to Level (from Table 1, Job Title Stores, Census 8 Column (h)) 2000 Census Female % Store General and 9 Managers 12.9% Operations 34.1% 37.8% Managers 10 Assistant General and 11 Managers 16.6% Operations 34.1% 48.7% Managers 12 Staff Marketing Managers 27.9% and Sales 63.2% 44.1% 13 Managers 14 Other Salaried First Line Managers 30.0% Supervisors of 63.9% 46.9% 15 Sales Workers

16 17 15. Column (b) of Table 2 repeats figures, previously presented in Table 1, on the actual 18 representation of women in Costco in-store management jobs, so that they can be compared 19 against the benchmark figures in Column (d). At all four managerial levels examined, Costco’s 20 female representation is substantially lower than the Census benchmark. As Column (e) of Table 21 22 2 reports, among Store Managers, the Costco figure (12.9% female) is about one-third -- 37.8% -

23 - as large as the Census figure (34.1% female). At the remaining three levels of management,

24 according to Column (e) of Table 2, the Costco figure is slightly less than half the Census figure 25 -- 48.7%, 44.1%, and 46.9%, respectively. 26 not support Dr. Saad’s conclusion (in paragraph 104 of his report, emphasis added) that, “Dr. 27 Bendick’s use of the wrong … code leads to a significant overstatement of female representation in his external labor market benchmark…” Not only is the difference not very large. It does not 28 consistently overstate, since Dr. Saad’s proposed change would lead to a higher benchmark in one case and a lower one in the other. - 8 - 5.17

1 IV. SECOND BENCHMARK: 2000 CENSUS – ALL RETAILERS 2 3 16. From the same 2000 Census data described in the previous section, I extracted a 4 second benchmark, based on all retailers rather than only general merchandise stores.15 As 5 presented in Column (d) of Table 3, these figures range from 26.0% female at the highest level of 6 7 retail managers (General and Operations Manager) to 41.2% at the lowest level (First Line 8 Supervisors of Sales Workers).

9 17. Column (b) of Table 3 repeats figures, previously presented in Table 1, on the actual

10 representation of women in Costco in-store management jobs, so that they can be compared to the 11 benchmark figures in Column (d). At all four managerial levels examined, Costco’s level of 12 female representation is substantially lower than the Census benchmark. As Column (e) of Table 13 3 reports, at the level of Store Manager, the Costco figure (12.9% female) is about half -- 49.6% 14 15 -- as large as the Census figure (26.0% female). At the remaining three levels of management, 16 according to Column (e) of Table 2, the Costco figures are 63.8%, 65.6%, and 72.8% of the

17 Census figures, respectively. 18 18. The Census figures in Tables 2 and 3 have several characteristics which make them 19 particularly appropriate, important benchmarks against which to compare Costco’s employment 20 patterns. First, the Census is the most universally recognized, authoritative source of data on the 21 American population and economy; its data are as accurate and reliable as billions of dollars of 22 23 effort each decade can produce. Second, the Census Bureau’s “EEO Special File,” which the

24 Census Bureau has prepared from every Census since 1970, is a standard source of employment 25 15 Specifically, I combined Census data for the following retail sectors: Motor Vehicle and Parts Dealers (Standard 26 Industrial Code 467-469); Furniture and Home Furnishings Stores (477); Electronics and Appliance Stores (478- 479); Building Material and Garden Equipment Dealers (487-489); Food and Beverage Stores (497-499); Health and 27 Personal Care Stores (507-508); Gasoline Stations (509); Clothing and Clothing Accessory Stores (517-519); Camera, Photographic Supplies, Sporting Goods, Hobby, Book and Music Stores (527-537); General Merchandise 28 Stores (538-539); Miscellaneous Store Retailers (547-558); and Non-store Retailers and Not Specified Retail Trade (559-579). - 9 - 5.18

1 TABLE 3 THE REPRESENTATION OF WOMEN AMONG 2 MANAGERS AT ALL RETAILERS NATIONWIDE, 3 ACCORDING TO THE 2000 CENSUS

4 (a) (b) (c) (d) (e) Female Female Ratio of 5 Representation Closest Representation Costco Costco at Costco, Corresponding in All Female % 6 Job 1999-2004 Census Retailers , to 7 Level (from Table 1, Job Title 2000 Census Census Column (h)) Female % 8 Store General and Managers 12.9% Operations 26.0% 49.6% 9 Managers Assistant General and 10 Managers 16.6% Operations 26.0% 63.8% 11 Managers Staff Marketing 12 Managers 27.9% and Sales 42.5% 65.6% Managers 13 Other Salaried First Line 14 Managers 30.0% Supervisors of 41.2% 72.8%% Sales Workers 15

16 benchmarks widely used by employers in preparing Affirmative Action plans and by the EEOC 17 18 and the Office of Federal Contract Compliance in monitoring employers. Third, the Census data 19 contains occupational titles which correspond directly to the Costco positions at issue in this case.

20 19. At the same time, three limitations of these Census benchmarks are important to note: 21 • First, although the Census data are limited to general merchandise stores, they include 22 stores of all sizes. It would be ideal to exclude from the benchmark very small, non-chain 23 “mom and pop” stores and thus limit the comparison to large stores in large chains, where 24 25 the role of in-store managers is more similar to those at Costco. 26 27 28

- 10 - 5.19

1 • Second, the Census benchmark data are nation-wide. Although Costco operates some 338

2 stores in 37 states,16 these facilities are inevitably distributed geographically somewhat 3 differently from the total American population reflected in Census figures. It would be 4 ideal to tailor the Census comparisons to each Costco store’s local labor market, rather 5 than to compare nation-wide Census data to nation-wide Costco employment. 6 7 • Third, to the extent that employers in the Census data other than Costco under-utilize

8 women in managerial employment, then the Census benchmarks under-estimate the

9 representation of women among all persons qualified for, available for, and interested in 10 in-store managerial positions comparable to those at Costco.17 It would be ideal to adjust 11 women’s actual employment figures to account for this effect. 12 20. The third of these limitations is difficult to address, and I do not attempt to do so in 13 14 this report, other than to note that this consideration tends to make all the benchmarks I present 15 under-estimates of the expected female representation at Costco. In this sense, my whole analysis

16 should be considered conservative. However, alternative benchmarks are available which address

17 the first two limitations, and they are presented in the next three sections of this report. 18

23 24 16 These figures are current as of August 2005, according to Costco Wholesale Corporation, Annual Report to the 25 Securities and Exchange Commission (Form 10-K) for the Fiscal Year Ended August 28, 2005, page 7.

26 17 The most obvious example involves Wal-Mart, which is among Costco’s most direct competitors. As a chain of general merchandise stores with 1.7 million employees, Wal-Mart employees are heavily represented among the 27 Census respondents on which Tables 1 and 2 are based. However, Wal-Mart is currently the subject of significant class action litigation alleging, among other things, under-representation of women in store management positions; 28 see Dukes et al v. Wal-Mart Stores, Inc. 222 FRD 137 (N.D. Cal 2004).

- 11 - 5.20

1 V. THIRD BENCHMARK: NATION-WIDE EEO-1 DATA - 2 GENERAL MERCHANDISE STORES 3 21. Under the Civil Rights Act of 1964, all employers with 100 or more employees18 4 are required to file annual reports with the EEOC, called “EEO-1 Reports,” in which they 5 enumerate their employees by race and gender in nine broad job categories, including “Officials 6 7 and Managers.” Tabulations of these figures for broad industry groups are publicly available on 8 the EEOC’s website, http://eeoc.gov/stats/jobpat/2003/naics3/452.html.

9 22. In nation-wide EEO-1 data, from 1999 through 2003,19 among “Officials and

10 20 Managers” in “General Merchandise Stores,” the representation of females averages 49.5%. 11 This figure appears in Column (c ) of Table 4. That table then compares this figure to the actual 12 representation of women among Costco managers, reported in Column (b). According to Column 13 (d) of the table, among Store Managers, the Costco figure is 26.1% of the EEO-1 benchmark. For 14 15 Assistant Managers, it is 33.5% of the benchmark. For Staff Managers, it is 56.4% of the

16 benchmark. For Other Salaried Managers, it is 60.6% of the benchmark. For all Officials and

17 Managers in Costco’s company-wide EEO-1 report, it is 59.6% of the benchmark. 18

22 23

25 26 18 Government contractors are required to file EEO-1 reports for 50 or more employees. 27 19 2003 is the most recent for which the EEOC has currently released EEO-1 data on its website. 28 20 The figures for individual years are: 1999: 50.3%; 2000: 49.9%; 2001: 49.9%; 2002: 48.4%; 2003: 48.9%. - 12 - 5.21

1 TABLE 4 THE REPRESENTATION OF WOMEN AMONG OFFICALS 2 AND MANAGERS OF GENERAL MERCHANDISE STORES 3 ACCORDING TO NATIONWIDE EEO-1 REPORTS, 1999-2003

4 (a) (b) (c ) (d) Female Female Representation Ratio of 5 Representation Among Officials and Costco Costco at Costco, Managers of General Female % 6 Job 1999- 2004 Merchandise Stores, to 7 Level (from Table 1, EEO-1 Reports, EEO - 1 Column (h)) 1999-2003 Female % 8 Store Managers 12.9% 49.5% 26.1%

9 Assistant Managers 16.6% 49.5% 33.5%

10 Staff Managers 27.9% 49.5% 56.4% 11 Other Salaried Managers 30.0% 49.5% 60.6% 12 EEO-1 Report – All 29.5% 21 49.5% 59.6% 13 Officials and Managers 14

15 VI. FOURTH BENCHMARK; 16 NATION-WIDE EEO-1 DATA- ALL RETAILERS 17

18 23. From the same nation-wide EEO-1 data described in the previous section, I

19 extracted a fourth benchmark, based on all retailers rather than only general merchandise stores.22

20 24. In nation-wide EEO-1 data, in 2003, among “Officials and Managers” in “All 21 Retailers,” the representation of females averages 37.2%. This figure appears in Column (c ) of 22 Table 5. That table then compares this figure to the actual representation of women among 23 Costco managers, reported in Column (b). According to Column (d) of Table 5, among Store 24 25 21 From footnote 25, below, using the average for 2000-2004. 26 22 Specifically, I extracted data for all establishments whose EEO-1 report fell within North American Classification 27 System 44 - Retail Trade. This figure is provided on the EEOC website for 2003. In earlier years, when employers were grouped under Standard Industrial Code (SIC) categories rather than the North American Industrial 28 Classification System categories, no comparable aggregate figure is presented.

- 13 - 5.22

1 Managers, the Costco figure is 34.7% of the EEO-1 benchmark; for Assistant Managers, 44.6%

2 of the benchmark; for Staff Managers, 75.0% of the benchmark; and for Other Salaried Managers, 3 80.6% of the benchmark. For all Officials and Managers in Costco’s company-wide EEO-1 4 report, it is 79.3% of the benchmark. 5

6 7 TABLE 5 THE REPRESENTATION OF WOMEN AMONG OFFICALS 8 AND MANAGERS OF ALL RETAILERS ACCORDING TO NATIONWIDE EEO-1 REPORTS, 2003 9 (a) (b) (c ) (d) 10 Female Female Representation Ratio of 11 Representation Among Costco Costco Job at Costco, Officials and Managers, Female % 12 Level 1999-2004 EEO-1 Reports, to (from Table 1, All Retailers, 2003 EEO-1 13 Column (h)) Female %

14 Store Managers 12.9% 37.2% 34.7% 15 Assistant 16 Managers 16.6% 37.2% 44.6%

17 Staff 18 Managers 27.9% 37.2% 75.0%

19 Other Salaried 30.0% 37.2% 80.6% 20 Managers EEO-1 21 Report – All 29.5% 23 37.2% 79.3% 22 Officials and Managers 23

24 25. Compared to the Census-based benchmarks presented in Sections III and IV of this 25 report, the benchmarks in Table 4 have the limitation of not being estimated separately for each of 26 27

23 28 From footnote 25, below, using the average for 2000-2004.

- 14 - 5.23

1 the four levels of management examined or strictly limited to the job titles included there.24 25

2 However, they have the advantage of being based on data which exclude “mom and pop” stores, 3 because these reports are primarily from establishments with at least 100 employees. 4

6 7

24 8 According to an undated document produced by Costco (Kadue e-mail, 4/12/06, Bates CRE 0002656-2659), in its own EEO-1 reports, Costco categorizes the following job titles under “Officials and Managers”: 9 • Titles included in the Four Levels in Table 1: 10 -- Manager-General (2000) -- Manager-Assistant General (2001) 11 -- Manager-Merchandise (2002), Manager-Administration (2003), Manager-Front End (2004), Manager-Receiving (2005) 12 -- Manager–Shipping (2006), Manager-Shipping/Receiving (2007), Manager–Business Delivery (2008), Manager–Foods (2009), Manager-Non-Foods (2010), Manager-Hardlines (2011), 13 Manager-Center (2012), Manager-Meat (2013), Manager-Bakery (2014), Manager-Facilities (2015), Manager-Fleet (20116), Manager-Membership/Marketing (2017), Manager-Production 14 (2018), Manager-Quality Control (2019), Manager-Optical (2020), Manager-Photo Lab (2021), Manager-Hearing Aid (2022), Manager-Tire Center (2023), Manager-Service Deli (2024), 15 Manager-Food Court (2025), Assistant Manager-Bakery (2053), Assistant Manager-Front End (2052), Assistant Manager-Merchandise (2050), Assistant Manager-Receiving (2051), 16 Manager in Training (2100). • Titles Apparently at a Higher Rank than Store Manager: 17 Assistant Vice President (7007), Vice President (7006), Senior Vice President (7005), Executive Vice President (7004), Senior Executive Vice President (7003), President (7001), Chief 18 Executive Officer (7001), Chairman (7001), Director (6500), Manager-Division (6400), Manager-Region (6300), Manager-District (6250) 19 • Other Job Titles: Senior Merchandiser (6025), Buyer in Training (Buyer in Training), Buyer-Assistant (6004), 20 Buyer (6003), Buyer-Senior (6002), Assistant General Merchandise Manager (6001), General Merchandise Manager (6000), Editor/Publisher (5825), Supervisor-Salaried (5802), Manager- 21 Assistant (5801), Manager (5800), Manager-Project (5770), Manger-Senior (5760), Purchasing Agent – Assistant (5518), Purchasing Agent (5517), Manager in Training (2100), Supervisor- 22 Salaried (1076).

23 25 Despite not being precisely limited to the four job levels, the female representation among all Costco Officials and Managers corresponds reasonably well to the weighted average of the four job titles: 24 Average 25 2000 2001 2002 2003 2004 2000 – 2004 26 Costco Company-wide EE0-1, Officials and Managers 29.0% 28.9% 29.6% 29.8% 30.1% 29.5% 27 Weighted Average of 4 Levels of Costco In- Store Managers 26.4% 26.2% 27.0% 27.2% 27.6% 26.9% 28 (Table 1)

- 15 - 5.24

1 VII. FIFTH BENCHMARK: LOCAL EEO-1 DATA 2 3 26. Although the EEOC does not routinely release EEO-1 data for individual 4 establishments, several years ago it provided to me a data set containing nearly 200,000 such

5 reports, with firms’ names and other identifying information removed.26 Using these data, I

6 identified 167 separate Costco retail establishments (not including corporate headquarters, 7 distribution centers, and other non-store facilities). I then calculated the representation of women 8 in at all separately-reporting retail establishments in the “Miscellaneous General Merchandise 9 Stores” industry (Standard Industrial Code 539) in the same local labor market as each of the 167 10 27 11 Costco retail establishments. When the results for all 167 establishments are combined, the 12 representation of women among Officials and Managers at these comparator stores is 33.2%.

13 27. This 33.2% figure appears as a benchmark in Column (c ) of Table 6. The table 14 then compares this figure to the actual representation of women among Costco managers in 15 Column (b). According to Column (d) of Table 6, among Store Managers, the Costco figure is 16 38.8% of the benchmark; for Assistant Managers, 50.0% of the benchmark; for Staff Managers, 17 84.09% of the benchmark; and for Other Salaried Managers, 90.4% of the benchmark. For all 18 19 Officials and Managers in Costco’s EEO-1 reports for the 167 stores for which the firm filed

20 separate EEO-1 reports, it is 79.5% of the benchmark.

21 28. Compared to the Census-based benchmarks in Tables 2 and 3, the benchmarks in 22 Table 6 share with those in Tables 4 and 5 the advantage of excluding small retail establishments 23 and the limitation of not being estimated separately for each of the four levels of Costco 24 25 26 See Marc Bendick, Jr., Using EEO-1 Data to Analyze Allegations of Employment Discrimination (Presentation to 26 the Section of Employment and Labor Law, American Bar Association National Meetings, July 2000).

27 27 For stores in urban areas, I defined the local labor market is the federally-defined Standard Metropolitan Statistical Area in which the store is located. For stores outside urban areas, I defined it as all areas of its state outside any 28 Standard Metropolitan Statistical Area.

- 16 - 5.25

1 management examined. However, the benchmarks in Table 6 have the advantage over those in

2 Tables 2 through 5 of being based on each local labor market where Costco has retail 3 establishments, rather than nation-wide averages. In addition, they are based on a narrower 4 definition of the industry in which Costco reports -- SIC 539 (Miscellaneous General Retail 5 Stores) rather than SIC 53 (All General Merchandise Stores); nation-wide EEO-1 data released on 6 7 the EEOC website are provided only at that latter, broader industry level. 8 TABLE 6 9 THE REPRESENTATION OF WOMEN AMONG OFFICALS AND MANAGERS OF MISCELLANEOUS GENERAL MERCHANDISE 10 STORES LOCATED IN THE SAME LOCAL LABOR MARKET 11 AS 167 SEPARATELY-REPORTING COSTCO STORES, ACCORDING TO EEO-1 DATA, 2000 12 (a) (b) (c) (d) 13 Female Female Representation Ratio of Representation Among Officials and Costco 14 Costco at Costco, Managers, EEO-1 Reports Female % 15 Job 1999-2004 for Misc. General to Level (from Table 1, Merchandise Stores in the EEO-1 16 Column (h)) Same Labor Market, 2000 Female % Store 17 Managers 12.9% 33.2% 58.8% 18 Assistant 19 Managers 16.6% 33.2% 50.0%

20 Staff Managers 27.9% 33.2% 84.0% 21 Other 22 Salaried 30.0% 33.2% 90.0% Managers 23 EEO-1 Report – All 26.4% 28 33.2% 79.5% 24 Officials and 25 Managers

27 28 28 Calculated by me from the 167 establishment-specific EEO-1 reports, 2000. - 17 - 5.26

1 VIII. CONCLUSIONS

2 29. Each of the five benchmarks presented in this report has limitations. However, 3 each has sufficient strengths to be a plausible standard of expected representation against which 4 Costco’s employment of female in-store managers can reasonably be judged. 5 30. As Tables 2 through 6 report, Costco’s actual representation of women among its 6 7 in-store managers fell substantially short of every one of the five benchmarks for all four Costco 8 in-store managerial jobs examined.

9 31. A sixth, particularly credible, conservative benchmark can be derived by combining

10 the five benchmarks in a way which eliminates high and low estimates, by selecting the median – 11 the one which falls in the middle among the five. Table 7 presents the five benchmarks for each 12 Costco job level, and Column (g) identifies the median. Based on the information I have 13 analyzed to date, I consider the figures in Column (g) of Table 7 the most accurate, conservative 14 15 benchmark against which Costco’s employment of females among in-store managers should be 16 judged.

17 32. The benchmark for Store Managers and Assistant Managers in Column (g) of Table 18 7 is 34.1%. These figures are substantially higher than Costco’s actual employment of women in 19 these jobs, which, according to Table 1, is 12.9% for Store Managers and 16.6% for Assistant 20 Managers. 21 33. The 34.1% figure is also higher than the figures in Table 1 for Costco’s actual 22 23 employment of women among Staff Managers -- 27.9% -- and Other Salaried Managers -- 30.0%.

24 This implies that, if Costco were promoting women to Assistant Manager and Store Manager

25 ranks in proportion to their representation at the Staff Manager and Other Salaried Manager 26 levels, it would close some of the “shortfall” in Costco’s employment of women among Store 27

- 18 - 5.27

1 TABLE 7 THE MEDIAN VALUE AMONG THE 2 FIVE BENCHMARKS PRESENTED 3 IN THIS REPORT

4 (a) (b) (c) (d) (e) (f) (g) Bench- Bench - Bench- Bench- Bench- Median 5 mark 1: mark 2: mark 3: mark 4: mark 5: Value Costco Census Census National National Local Among 6 Job General All EEO-1, EEO-1, EEO-1 the 7 Level Merchandise Retailers General All (Table 6) Five Stores (Table 3) Merchandise Retailers Bench- 8 (Table 2) Stores (Table marks (Table 4) 5) 9 Store 34.1% 26.0% 49.5% 37.2% 33.2% 34.1% Managers 10 Assistant 34.1% 26.0% 49.5% 37.2% 33.2% 34.1% 11 Managers Staff 63.2% 42.5% 49.5% 37.2% 33.2% 42.5% 12 Managers Other 13 Salaried 63.9% 41.2% 49.5% 37.2% 33.2% 41.2% 14 Managers

16 Managers and Assistant Managers. However, additional shortfall would remain, because Costco 17 18 appears also to be employing women at the Staff Manager and Other Salaried Manager levels at a 19 lower rate than is expected.

20 34. The substantial representation of women among managers in firms comparable to 21 Costco clearly suggests that women are available for, qualified for, and interested in Costco-like 22 retail management jobs in substantial numbers. 23 35. This fact, in turn, suggests that, when women are not employed by Costco in 24 managerial positions at benchmark rates, the explanation for this shortfall is to be found in the 25 26 company, its corporate culture, and its human resource management practices. It cannot be

27 explained away as a shortage of available, qualified, and interested women.

- 19 - 5.28

2 * * * * * * * * 3 I declare under penalty of perjury of the laws of the United States and of the 4 District of Columbia that the foregoing is true and correct. This declaration was signed by me on 5 ____ August 2006, in Washington, D.C. 6 7 8 ______Marc Bendick, Jr., Ph.D. 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

- 20 - 5.29

ETHICAL ISSUES IN E-DISCOVERY

No Materials

Javier Peral II, Miami Jeff Hajny, Miami Adam Sharp, Tampa JURY SELECTION TECHNIQUES

No Materials

Jerrod Mills Tampa

DAMAGES IN EMPLOYMENT DISCRIMINATION CASES

Tad Delegal Jacksonville

DAMAGES IN EMPLOYMENT CASES1 T.A. “Tad” Delegal, III Delegal Law Offices, P.A. Jacksonville, Florida

I. DAMAGES UNDER SPECIFIC STATUTES

A. Fair Labor Standards Act.

Damages include back wages, liquidated damages, and attorney’s fees and costs. No compensatory or punitive damages are available under the FLSA. Liquidated damages are calculated by doubling the amount of back wages, and will be awarded in most circumstances. Prejudgment interest is awardable under the FLSA.2 Reinstatement and injunctive relief are also available.

1. Extension of FLSA Statute of Limitations based upon Willfulness.

The statute of limitations for a violation of FLSA is extended from two to three years based upon a finding of willfulness.3 The plaintiff has the burden to prove a defendant’s conduct is willful, and does so by showing that “the employer knew or showed reckless disregard of the matter of whether its conduct was prohibited by the [Act.].4” A violation of the FLSA is considered willful if the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [the statute].”5 Willfulness is a question for a jury.6 A

1 This outline is based on and includes the comprehensive materials originally prepared for the certification review seminar by Nancy Chad, Jill Schwartz and Joan S. Okun, M. Sean Moyles, Karen Meyer Buesing, Mark Cheskin and Brian Lerner, and Peter F. Helwig, from 2001 to January 2008, and reformulated by Mary Ruth Houston in 2014. They also include materials taken from the presentation prepared by the presenter and the Honorable James H. Daniel to the 2012 Conference of Circuit Court Judges. 2 Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094, 1102 (11th Cir. 1987). 3 29 U.S.C. §255(a). 4McLaughlin v. Richland Shoe Co., 486 U.S. 128, 132-33, 135 (1988). 5 Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128 (1985). 6 Sakas v. Settle Down Enterprises, Inc., 90 F.Supp.2d 1267, 1278 (N.D. Ga. 2000). If an employer is deemed to have acted reasonably in determining its legal obligations, its action cannot be deemed willful. Id. at 135 n. 13. However, an employer’s failure to make a determination that a practice violates the FLSA supports a conclusion of recklessness. Sakas, 90 F. Supp.2d at 1278 quoting LaPorte v. General Elect. Plastics, 838 F.Supp. 549, 558 (M.D. Ala. 1993).

8.1

finding of willfulness will preclude a finding of good faith such as will defend against liquidated damages.7 Negligent failure to comply with the FLSA will not support a finding of willfulness.8

2. Liquidated Damages.

An employee who establishes that he or she was not paid in accordance with the FLSA is entitled, in addition to back pay, to a mandatory award of equal amount as liquidated damages "absent a showing of good faith" by the employer.9 To meet this "good faith" standard, it is not sufficient for the employer to merely assert that it subjectively believed that it was in compliance. Rather, the employer possesses the burden of demonstrating that it acted "in reliance on an administrative regulation, order, ruling, approval or interpretation of an agency of the United States.10" A showing of “good faith” has an objective component that requires a duty to investigate potential liability under the FLSA.11 Good faith has a subjective component as well, requiring the employer must also prove it had an honest intention to ascertain what the FLSA requires and act in accordance with it.12 Ignorance of the FLSA, or misunderstanding of the FLSA, is not sufficient to defend against liquidated damages.13

3. Compensatory and Punitive Damages for Retaliation.

The 1977 statutory revisions to the FLSA permitted courts to award appropriate legal and equitable relief in retaliation claims.14 In addition to damages arising from lost wages, an

7 Glenn, 841 F.2d 1567, 1573; Miller v. Paradise of Port Richey, Inc., 75 F.Supp.2d 1342, 1346 (M.D. Fla. 1999). 8 Reich v. Department of Conservation & Natural Resources, 28 F.3d 1076, 1084 (11th Cir. 1994). 9 See, e.g., Spires v. Ben Hill County, 980 F.2d 683, 689 (11th Cir. 1993). 10 See, e.g., Sack v. Miami Helicopter Service, Inc., 986 F.Supp. 1456, 1472 (S.D.Fla. 1997). 11 Barcellona et al. v. Tiffany English Pub, Inc., 597 F.2d 464, 469 (5th Cir. 1979); Sacks v. Miami Helicopter Service, Inc., 986 F.Supp. 1456, 1472 (S.D. Fla. 1997); and see York v. City of Wichita Falls, Texas, 763 F.Supp. 876, 882 (N.D. Tx. 1990) (holding that City violated overtime pay requirements between 1996 and 1989 and made no effort to investigate its potential liability after amendments to FLSA in 1985). 12 Dybach , 942 F.2d at 1566. 13 Glenn v. General Motors Corp., 658 F.Supp. 918, 928 (N.D. Ala. 1986), rev’d in part on other grds, aff’d in part on relevant grds., 841 F.2d 1567, 1573 (11th Cir. 1988). 14"Any employer who violates the provisions of section 15(a)(3), of this Act [29 U.S.C. § 215(a)(3)] shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 15(a)(3), including without limitation . . . ."

8.2

employee may seek compensatory damages for emotional distress and mental anguish arising from violations of the FLSA's anti-retaliation provision.15 Punitive damages are not available.16

B. Title VII.

A jury trial is available, and plaintiffs may recover back pay, front pay, compensatory damages17, punitive damages, and attorney’s fees and costs. “Affirmative action” relief, including race-based preferences, numerical goals and benefiting non-party protected class members, is permissible only in rare cases where a history of egregious discrimination against the protected group is proven and recited in detailed factual findings by the court.18

Title VII vests courts with equitable discretion to “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees . . . or any other equitable relief as the court deems appropriate,” in order to “fashion the most complete relief possible” so as to “make the victims of unlawful discrimination whole.19”

15 Travis v. Gary Community Mental Health Center, Inc., 921 F.2d 108, 112 (7th Cir.1990); Moore v. Freeman, 355 F.3d 558, 564 (6th Cir.2004); Bogacki v. Buccaneers Ltd. P'ship, 370 F.Supp.2d 1201, 1203 (M.D.Fla. 2005); Randolph v. ADT Sec. Servs., 2012 U.S. Dist. LEXIS 82386, 20-21 (D. Md. June 14, 2012). 16 Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th Cir. 2000). Other courts differ. See Travis v. Gary Community Mental Health Ctr., Inc., 921 F.2d 108 (7th Cir. 1990) (punitive damages and compensatory damages for pain and suffering or emotional distress available for retaliation claim under ADEA). 17 Compensatory damages included “emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses.” 42 U.S.C. §§ 1981a(b)(3). Compensatory damages are capped based on the number of employees employed by a defendant, (15 to 100 employees $50,000; 101 to 200 employees $100,000; 201 to 500 employees $200,000; 501 employees or more $300,000); but the caps do not apply to traditional Title VII relief such as wages or benefits, 42 U.S.C. § 1981a(b)(2), and do not apply to back pay or front pay. Pollard v. E.I. DuPont de Nemours & Co., 532 U.S. 843, 853-54 (2001). The Civil Rights Act of 1991 amended Title VII to provide for awards of compensatory damages in cases of intentional discrimination, i.e., disparate treatment claims, but not disparate impact claims. 42 U.S.C. §§ 1981a(a)(1) & (2), (b)(3). Compensatory damages are available for both pecuniary damages such as consequential economic damages and non-pecuniary damages such as “emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses.” 42 U.S.C. §§ 1981a(b)(3); Stallworth v. Shuler, 777 F.2d 1431 (11th Cir. 1985); Canada v. Boyd Group, 809 F. Supp. 771, 779 (D. Nev. 1992). 18Sheet Metal Workers Local 28 v. EEOC, 478 U.S. 421 (1986). 19 42 U.S.C. §2000e-5(g).

8.3

C. 42 U.S.C. §1981.

This Reconstruction Era statute provides an alternate means of pursuing claims based on race or national origin.20 No exhaustion of administrative remedies is required in order to bring a claim under this statute, and the statute of limitation is four years from the date of the discriminatory action. Proof of a claim of §1981 discrimination is made in the same fashion as a claim under Title VII. One primary difference, however, is that the mixed motive defense does not apply in the same fashion to §1981 claims: rather, if an employer establishes that it would have taken the same action against an employee for other reasons, even in light of any discrimination the jury may find, the employer will have no liability.21

No caps on damages exist under the statute, and a plaintiff may recover compensatory and punitive damages, as well as attorney’s fees and costs. Section 1981 includes remedies not available under Title VII, such as unlimited emotional distress and punitive damages. A right to a jury trial has always existed under Section 1981, and there are no administrative prerequisites.

D. Age Discrimination in Employment Act.

The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et., seq., prevents discrimination against persons aged forty or over. The administrative procedures for an ADEA claim more closely resemble those for a Title VII claim (requiring the filing of a charge of discrimination with the EEOC)22, although the remedies are the same as those provided under the FLSA, and the statute therefore does not permit compensatory or punitive damages. Proof of a claim of ADEA discrimination is made in the same fashion as a claim under Title VII.

20 The statute states that it is based on the desire to permit persons to “make and enforce contracts,” and the phrase is interpreted broadly to include “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). An employee is protected in a number of employment situations, including at will employment, and is protected by § 1981 even when he or she had not actually begun work. See Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S. Ct. 1246, 163 L. Ed. 2d 1069 (2006). 21 See Brown v. J. Kaz, Inc., 581 F.3d 175, 182 n.5 (3d Cir. 2009); Mabra v. United Food & Commercial Workers Local Union No. 1996, 176 F.3d 1357, 1357-58 (11th Cir. 1999); But See Mora v. Jackson Mem. Found., Inc., 597 F.3d 1201, 1204 (11th Cir. Fla. 2010) (reasoning that since Supreme Court in Gross v. F.B.L. found that the ADEA (which is also subject to the pre-1991 Civil Rights Act standard) adopted a “but for causality” standard, “no same decision affirmative defense can exist: the employer either acted ‘because of’ the plaintiff's age or it did not.”). 22 The statute applies to employers who employ 20 or more persons in a twenty week period during the preceding year, and who engage in interstate commerce, rather than 15 employees as provided for under Title VII. While plaintiffs may wait for a right to sue notice to be issued before filing suit, they may also bring suit once more than sixty days have expired following the filing of an EEOC charge. See administrative remedies section, infra.

8.4

However, while Title VII plaintiffs must establish that discrimination is a “motivating factor” in the employer’s decision, an ADEA plaintiff must establish that the decision would not have been made “but for” the discrimination.23

The ADEA uses the FLSA’s remedial scheme, and therefore damages are available in the same manner as in an FLSA case. While the ADEA does not expressly reference benefits, federal courts routinely award the value of lost pension, insurance benefits, profit sharing and other benefits as part of “lost wages.24”

Proof of a “willful” violation of the ADEA, entitles a plaintiff to liquidated damages. 29 U.S.C. §626(b). An ADEA is willful if the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.25” A plaintiff need not show that the the defendant intended to violate the Act before a finding of willfulness can be had, and instead an employer's violation is “willful” if “the employer knew or showed reckless disregard for the matter of whether his conduct was prohibited by the ADEA.26 Liquidated damages are awarded in an amount equal to the net back pay award, and can include an award of prejudgment interest.27

Reinstatement is a statutory element of relief for a wrongful discharge or demotion.28 Reinstatement is not mandatory, but it is “the preferred remedy under the ADEA.29” Reinstatement, as an equitable remedy, so the judge, rather than the jury generally determines whether a plaintiff will be reinstated.30 While reinstatement is the preferred remedy, when reinstatement is not feasible, front pay may be awarded as an alternative to compensate the individual for future lost compensation. Workplace hostility often times makes reinstatement impossible or impractical. A trial court may determine the amount of front pay by predicting

23 Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343, 2352 (2009). While the “but for” standard is technically different than the “motivating factor” standard, there is substantial question as to whether the different standards actually mean anything from a practical standpoint. See CSX Transportation, Inc., v. McBride, 131 S.Ct. 2630, 2645 (2011) (“whether negligence played any part, even the slightest, in producing the injury—is no limit at all. It is simply ‘but for’ causation.”) 24 See, e.g., Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1446 (11th Cir.), cert. denied, 474 U.S. 1005 (1985). 25 Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). 26 Transworld Airlines v. Thurston, 469 U.S. 111 (1985) 27 Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094, 1102 (11th Cir. 1987); Mock v. Bell Helicopter Textron, Inc., 2007 WL 2774230 (M.D. Fl. Sept. 24, 2007). 28 29 U.S.C. § 626(b). 29 Blim v. Western Electric Co., Inc., 731 F.2d 1473 (10th Cir.), cert. denied 469 U.S. 874 (1984). 30 Lorillard v. Pons, 434 U.S. 575 (1978).

8.5

how long a plaintiff would have remained employed.31 A request for reinstatement, however, is not a condition precedent for the award of front pay.32 The trial court will consider the Plaintiff’s duty to mitigate in the award of front pay.33

Injunctive relief is also available against covered entities under the ADEA. Such injunctions might restrict against terminating severance pay34, or protect an individual from further “widespread continuous antagonism” by the employer.

The ADEA does not provide for awards of compensatory or punitive damages.35 The ADEA incorporates the provisions of the FLSA providing for an award of attorneys’ fees and costs to a prevailing individual. 29 U.S.C. §626(b).

E. Family Medical Leave Act.

The remedies available are the same as under the FLSA.

F. Americans with Disabilities Act

The remedies available are the same as under Title VII.36

G. Equal Pay Act

Damages are the same as under FLSA.

H. The Florida Civil Rights Act, §§760.01-760.10, Fla. Stat.

Successful plaintiffs may recover back and front wages, compensatory damages for pain and suffering and emotional distress, compensation for attorney’s fees and costs, and equitable

31 Blum v. Whitco Chemical Corp., 829 F.2d 367 (3rd Cir. 1987) 32 Roush v. KFC Nat. Management Co., 10 F.3rd 392 (6th Cir. 1993). 33 Hansard v. Pepsi Cola Metropolitan Bottling Co., 865 F.2d 146t, 1470 (5th Cir. 1989). 34 See EEOC v. Cosmair, Inc., 821 F.2d 1085 (5th Cir. 1987) 35 See, e.g., Maschka v. Genuine Parts Co., 122 F.3d 566 (8th Cir. 1997) (compensatory); Haskell v. Kama Corp., 743 F.2d 113 (2nd Cir. 1984) (compensatory); Pfeiffer v. Essex Wire Corp., 682 F.2d 684 (7th Cir. 1982) (punitive), cert. denied, 459 U.S. 1039; Fiedler v. Indianhead Truck Line, Inc., 670 F.2d 806 (8th Cir. 1982) (punitive). 36 42 U.S.C. § 12117. Because the ADA adopts Title VII's remedial provisions, as those provisions are amended, the ADA incorporates the changes. See H.R. Rep. No. 485, Part 3, 101st Cong., 2d Sess. at 48-49 (1990) (House Judiciary Report). The Rehabilitation Act expressly adopts the same liability standards as the ADA. 29 U.S.C. §791(g).

8.6

relief.37 Punitive damages may be awarded of not more than $100,000, and the statutory process for judicial approval to plead punitive damages does not apply to FCRA claims.

I. Florida Whistle-blower Retaliation.

The private sector statute permits a jury trial and damages, including lost wages, compensatory and punitive damages, attorney’s fees and costs, as well as reinstatement or other injunctive relief.38 While the private sector statute permits an award of fees to the “prevailing party,” fee awards to prevailing defendants have been restricted to circumstances in which the plaintiff acted in bad faith.39 The public sector statute requires an award of back pay and benefits, reinstatement or front pay, an injunction (if appropriate) and attorney’s fees and costs.40 Additionally, the statute requires pre-trial reinstatement of a state (but not a local) employee unless the court finds bad faith, or a disciplinary action had previously been initiated before a protected disclosure.41 A jury trial is available under each of the statutes. Although the public sector statute does not specifically list compensatory damages, the issue has not been conclusively addressed.42

37 Fla. Stat. Section 760.11(5). Attorney’s fees are not subject to a fee multiplier, but the costs awarded are much broader than those generally permitted under Florida’s Uniform Guidelines, and are instead based on the Title VII standard for costs. Winn-Dixie Stores, Inc. v. Reddick, 954 So. 2d 723, 728 (Fla. 1st DCA 2007) 38 Fla. Stat. § 448.104. 39 A five-part test has been adopted in determining a defendant’s entitlement to fees under the Act: “(1) the scope and history of the litigation, including whether the Plaintiff continued to prosecute the action despite the presence of an efficient resolution to the case; (2) the parties’ wealth disparity; (3) whether an award of fees would frustrate the FWA’s remedial purpose by deterring worthy claimants; (4) whether the opposing party’s case was meritorious or frivolous; and (5) whether the opposing party acted in good or bath faith . . . .” Blanco v. TransAtlantic Bank, 2009 U.S. Dist. LEXIS 77510, 2009 WL 2762361, *2 (S.D. Fla. Aug. 31, 2009), citing Sherry Mfg. Co. v. Towel King of Fla., 822 F.2d 1031, 1034 (11th Cir. 1987) ; see also Hernandez v. Mohawkesv, Inc., 2010 U.S. Dist. LEXIS 36962, *9 (M.D. Fla. March 26, 2010). 40 Fla. Stat. §112.3187(9). 41 Fla. Stat. §112.3187(9)(f). 42 O'Neal v. Florida A & M University ex rel. Bd. of Trustees for Florida A & M University, 989 So. 2d 6 (Fla. 1st DCA 2008), holding that a jury trial is available, and noting that “[n]othing in the (public-sector) Act, moreover, precludes compensatory relief in addition to ‘lost wages, benefits, or other lost remuneration.’ The Act provides that relief ‘must include’ the remedies set out in the statute, but does not limit relief to those remedies” citing § 112.3187(9), Fla. Stat. But See Polston v. Department of Highway Safety and Motor Vehicles, 11 Fla. L. Weekly Supp. 633 (Second Judicial Circuit, May 7, 2004).

8.7

J. Workers Compensation Retaliation.

Fla. Stat. §440.205 provides that “No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.” 43 Workers compensation retaliation claims may not be removed to federal court, so the state court is the only tribunal which may hear such claims.44 The proof standard used for Title VII retaliation claims applies to claims under 440.205,45 and the plaintiff need only prove that retaliation was a substantial motivating factor in the employment action.46

A plaintiff may recover back pay and emotional distress and punitive damages, and is entitled to a jury trial.47 However, no provision is contained in the statute for attorney’s fees.

K. Claims for Wages or Benefits.

Florida voters adopted a minimum wage provision in the Florida Constitution, which permits claims for failure to pay specific minimum wages. Employees can also pursue common law claims for unpaid, accrued wages or commissions that are separate from any breach of contract claim48. §440.08, Fla. Stat., expressly provides for attorneys fees to the prevailing party in an action to recover unpaid “wages.” Courts have interpreted the term “wages” broadly to include salaries, commissions, vacation pay, dismissal wages, bonuses, and the reasonable value of employment benefits.49 In certain circumstances, employees can recover commissions earned while employed, which had not yet been paid by the date of employment separation. Employees may also pursue claims for unpaid vacation or sick leave, if such leave was vested at the time of separation.50

43 Bifulco v. Patient Business & Fin’l Servs., Inc., 39 So. 3d 1255 (Fla. 2010). 44 See 28 U.S.C. § 1445(c). 45 Andrews v. Direct Mail Express, Inc., 1 So. 3d 1192 (Fla. 5th DCA 2009). 46 Allan v. SWF Gulf Coast, Inc., 535 So. 2d 638 (Fla. 1st DCA 1988). 47 Scott v. Otis Elevator Co., 572 So. 2d 902, 903 (Fla. 1990) (back pay and punitive damages); Rease v. Anheuser-Busch, Inc., 644 So. 2d 1383, 1386 (Fla. 1st DCA 1994) (emotional distress); Flores v. Roof Tile Admin., Inc., 887 So. 2d 360 (Fla. 3d DCA 2004) (jury trial). 48 See, Rosen Building Supplies, Inc. v. Krupa, 927 So.2d 899 (Fla. 4th DCA 2005). 49 See, Coleman v. City of Hialeah, 525 So.2d 435 (Fla. 3rd DCA 1988). 50Those three district courts of appeal have held that each side to the “at will” employment relationship has an implied contractual obligation to provide reasonable advance notice to the other side when ending the relationship. Perri v. Byrd, 436 So. 2d 359 (Fla. 1st DCA 1983); Crawford v. David Shapiro & Co. P.A., 490 So. 2d 993 (Fla. 3rd DCA 1986); Torres v. Consolidated Bank, N.A., 653 So. 2d 492 (Fla. 3rd DCA 1995). Contra Motwani v. Ocean City Investment, Ltd., 682 So. 2d 1158 (Fla. 4th DCA 1996) (noting conflict which was 8

8.8

not resolved by the Florida Supreme Court). Reasonable notice has been interpreted to require employers to give a two week notice of termination, and entitles employees to recover pay for such a period of time if not given the notice.

8.9

II. CATEGORIES OF DAMAGE

A. Back Pay

Back pay includes regular pay, overtime pay, shift differentials, commissions, tips, increases and raises which the plaintiff would have earned, absent discrimination.51 Back pay also includes the value of fringe and other job-related benefits. 42 U.S.C. §2000e-5(g)(1).52 Benefits include vacation pay, medical insurance, pension and retirement benefits, savings plan contributions and profit sharing plan contributions.53 Back pay liability begins at the time the discriminatory act caused economic injury.54

1. When Backpay Period Begins.

Under Title VII, back pay may not begin more than two years prior to the plaintiff’s initial filing of a charge with the EEOC. 42 U.S.C. §2000e5(g)(1). The right to back pay terminates, if not earlier, on the date the judgment is rendered or on the date the jury returns a verdict.55 Other events that terminate the back pay period include the plaintiff’s accepting employment in a job with pay equal to or greater than her job with the defendant.56 The back pay period will not recommence if the plaintiff thereafter voluntarily resigns from such employment,57 or is terminated for cause.58 The burden of proof as to the termination date for back pay rests with the employer.59

51 Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1562-63 (11th Cir.), cert. denied, 479 U.S. 883 (1986); EEOC v. Liggett & Myers, 690 F.2d 1072, 1077-78 (4th Cir. 1982). 52 US. v. Burke, 504 U.S. 229, 238 (1992); Goldstein v. Manhattan Industries, 758 F.2d 1435, 1446 (11th Cir. 1985), cert. denied, 474 U.S. 1005 (1985). 53 Weaver v. Casa Gallardo, 922 F.2d 1515 (11th Cir. 1991); Loeb v. Textron, 600 F.2d 1003, 1021 (1st Cir. 1979). 54 Croker v. Boeing Co., 23 FEP Cases 1783 (E.D. Pa. 1979). 55 Nord v. U.S. Steel Corp., 758 F.2d 1462, 1472-73 (11th Cir. 1985). 56 Smith v. American Service Co., 38 FEP Cases 377, 378-79 (N.D. Ga. 1985), aff’d in relevant part, 796 F.2d 1430 (11th Cir. 1986). 57 Sennello v. Reserve Life Insurance Co., 667 F. Supp. 1498, 1514, 151819 (S.D. Fla. 1987), aff’d, 872 F.2d 393(11th Cir. 1989). 58Brady v. Thurston Motor Lines, 753 F.2d 1269, 1277-79 (4th Cir. 1985); contra, EEOC v. Stone Container Corp., 748 F. Supp. 11098, 1107 n.1 (W.D.Mo. 1982); Shealy v. City of Albany, Ga., 137 F. Supp. 2d 1359 (M.D. Ga. 2001); Reiner v. Family Ford, Inc., 146 F. Supp. 2d 1279 (M.D. Fla. 2001). 59 Richardson v. Restaurant Marketing Associates, 527 F. Supp. 690, 697 (N.D. Cal. 1981).

8.10

2. Exclusions from Back Pay

The back pay period is limited to those periods in which the employee is “available to and willing to accept substantially similar employment.”60 Periods of disability that result in inability to work are excluded from the back pay award. Id. at 794. The fact that an employee is awarded disability benefits under the Social Security Act is relevant, but not dispositive on the question of whether she is unable to work for purposes of this analysis.61

3. Duty to Mitigate

A plaintiff has a duty to mitigate her lost wages by using “reasonable diligence in finding other suitable employment.”62 The employer bears the burden of proof to show that the plaintiff failed to mitigate her damages.63 The plaintiff’s duty to mitigate requires her to make diligent efforts to secure “substantially equivalent employment,” and she need not accept employment which is significantly inferior to that which she held with the defendant.64 Also, she “need not go into another line of work, accept a demotion, or take a demeaning position.”65 However, if the plaintiff’s work search is unsuccessful for an extended period of time, some courts hold that she must “lower her sights” and accept non-comparable work in order to meet her obligation to mitigate.66 If the plaintiff decides to attend college or otherwise further her education, the back pay period is not terminated, so long as she continues to search for full-time employment.67

Generally, controversy has not arisen as to requirement of mitigation, rather it has been the issue of whether or not plaintiff has exercised reasonable diligence in seeking other employment that has generated disputes. Resolution of these disputes is very much fact oriented, and therefore few generalizations can be made as to what constitutes the exercise of reasonable diligence. The question of whether or not a plaintiff adequately met his or her mitigation obligations is for the jury to decide.68

60 Miller v. Marsh, 766 F.2d 490, 492 (11th Cir. 1985), as quoted in Latham v. Department of Children and Youth Services, 172 F.3d 786, 794 (11th Cir. 1999). 61 Cleveland v. Policy Management Systems Corporation, 526 U.S. 795, 801 (1999). 62 EEOC v. Ford Motor Co., 458 U.S. 219, 231 (1982). 63 Cantrell v. Knoxville Community Development, 60 F.3d 1177 (6th Cir. 1995); Sparks v. Griffin, 460 F.2d 433, 443 (5th Cir. 1972) (§1981 case). 64 Weaver v. Casa Gallardo, 922 F.2d at 1527. 65 EEOC v. Ford Motor Co., 458 U.S. at 231. 66 Weaver, 922 F.2d at 1527-28. 67 Nord v. U.S. Steel Corp., 758 F.2d 1462, 1472 (11th Cir. 1985). 68 Coleman v. City of Omaha, 714 F.2d 804 (8th Cir. 1983); Jackson v. Shell Oil, 702 F.2d 197 (gth Cir. 1983).

8.11

Generally, a plaintiff need only make a reasonable and good faith effort, and is not held to the highest standards of diligence in order to fulfill his duty to seek to mitigate damages.69 The discharged employee "is not required to unreasonably exert herself or incur unreasonable expense."70

Where the employee does obtain new employment, Title VII requires that these “interim earnings” from such employment be deducted from the gross back pay to which she would otherwise be entitled. 42 U.S.C. §2000e-5(g)(1). If the interim earnings exceed the gross back pay liability of the defendant, no back pay award is appropriate.71 However, as back pay is computed on a quarterly basis, a court must look at each quarter to determine the gross back pay, minus interim earnings.72 Therefore, even where interim earnings for the total period exceed gross back pay, courts award back pay for any quarters in which the interim earnings were less than the gross back pay.73

4. Unconditional Offer of Reinstatement

Where the employer makes a good faith, unconditional offer to reinstate the plaintiff to her former position or a comparable one, the plaintiff’s rejection of the offer terminates the back pay period.74 To be unconditional, the offer must not require plaintiff to waive any of her legal claims, but it need not include retroactive seniority or back pay. Id. at 241.

5. Constructive Discharge and Back Pay

The majority of circuits consistently hold that a prevailing Title VII plaintiff is not entitled to lost wages in the form of back pay (or front pay) unless he or she was actually or constructively discharged 75 A victim of discrimination that leaves his or her employment as a result of

69 Spulak v. K-Mart Corp., 894 F.2d 1150 (10th Cir. 1990). 70 Acrey v. American Sheet Industry Assoc., 772 F.Supp 1173 (D.Co 1991), affirmed in part and reversed in part on other grounds; 981 F.2d 1569 (10th Cir. 1992).

71 EEOC v. New York Times Broadcasting Service, 542 F.2d 356, 359 (2d Cir. 1976). 72 Kendrick v. Jefferson County Board of Education, 13 F.3d 1510 (11th Cir. 1994); Darnell v. Jasper, 730 F.2d 653 (11th Cir. 1984). 73 Darnell, 730 F.2d at 656-57.

74 Ford Motor Co., 458 U.S. at 238-39. 75 See Betts v. Costco Wholesale Corp., 558 F.3d 461, 475 (6th Cir. 2009) (lost wages); Williams v. W.D. Sports, N.M., 497 F.3d 1079 n. 12 (10th Cir. 2007) (back pay); Hare v. Potter, 220 Fed. Appx. 120 n. 9 (3d Cir. 2007) (back pay or front pay); Spencer v. Walmart Stores, Inc., 469 F.3d 311, 317 (3d Cir. 2006) (lost wages); Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 27 (1st Cir. 2002) (back pay); Hertzberg v. SRAM Corp., 261 F.3d 651 (7th Cir. 2001); Mallison- 12

8.12

discrimination must show either an actual or constructive discharge in order to receive the equitable remedy of reinstatement, or back pay and front pay in lieu of reinstatement. In the absence of such a showing, a plaintiff’s exclusive remedies are those set forth in 42 U.S.C. 1981a.”76

6. After Acquired Evidence

The back pay period is also capped if the employer comes forward with “after-acquired evidence” of the employee’s misconduct during her employment with it.77 In order to terminate the back pay period, the misconduct must be “of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” 513 U.S. at 362. For instance, if an employee was terminated for reasons she claims to be discriminatory, but the employer learns during discovery that she had removed confidential materials from the company’s premises, the employer can assert the defense to limit front pay, reinstatement, and back pay after (but not before) the point of the employer’s discovery of the after-acquired evidence.78 The EEOC’s guidelines made clear that after-acquired evidence may not limit either compensatory or punitive damages.79 Further, the mere possibility of unearthing materials to support an after-acquired defense does not justify subpoenas to current or former employers when no other reason exists to obtain the other employers’ records80.

7. Taxation of Backpay and “Gross-Ups”

Montague v. Pocrnick, 224 F.3d 1224, 1236-37 (10th Cir. 2000) (front pay and back pay); Durham Life Insurance Co. v. Evans, 166 F.3d 139, 156 (3d Cir. 1999) (back pay); Boems v. Crowell, 139 F.3d 452, 461-62 (5th Cir. 1998) (back pay); Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1219 (8th Cir. 1997) (front pay and back pay); Jurgens v. EEOC v. Gordon, 903 F.2d 386, 389 (5th Cir. 1990) (back pay); Major v. Rosenberg, 877 F.2d 694, 695 (8th Cir. 1989) (back pay); Derr v. Gulf Oil Corp., 796 F.2d 340, 342 (10th Cir. 1986) (back pay); see also E.E.O.C. v. W&O, Inc., 213 F.3d 600, 618-19 (11th Cir. 2000) (acknowledging that front pay is an equitable remedy and that equitable remedies are appropriate in a wrongful discharge case under Title VII). 76 Hertzberg, 261 F.3d at 659. 77 McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995). 78 McKennon v. Nashville Banner, 513 U.S. 352 (1995) 79 See EEOC Notice Number 915.002 (December 14, 1995) (most readily accessible at http://www.eeoc.gov/docs/mckennon.html). See also, Russell v. Microdyne Corp., 65 F. 3d 1229, 1241 (4th Cir. 1995) (after-acquired evidence does not affect compensatory or punitive damages); Castle v. Rubin, 78 F.3d 654, 646 (D.C. Cir. 1996) (affirming damages award). 80 EEOC v. Southern Haulers, LLC, 2012 U.S. Dist. LEXIS 68997, 10-11 (S.D. Ala. May 17, 2012) (“The mere possibility that something Southern Haulers could fish out of the personnel records of every employer who employed Williams since 2002 might be admissible as impeachment evidence simply does not justify Southern Haulers' present broad sweeping attempt to discover such private information.”)

8.13

Awards of back pay are not only taxable, but are subject to employer withholding for federal income tax, federal unemployment (FUTA) tax, and Social Security -Medicare (FICA) tax. 26 U.S.C. §§3301-22, 3101-28 and 3401-06.81 Some courts allow for “gross-ups” to enhance the back pay award in order to compensate for the higher rate of tax on a lump sum award than would have been imposed if the wages had been earned in due course.82 Others have held that gross-ups should not be awarded.83

8. Pre-judgment Interest

Prejudgment interest is “an element of complete compensation” and is awardable as part of the back pay remedy “as a normal incident of suits against private parties.”84 In McKinley v. Metal Container Corp., 854 F.2d 448, 453-54 (11th Cir. 1988), the Eleventh Circuit confirmed that prejudgment interest on a back pay award is to be calculated based on the IRS prime rates, “calculated in accordance with 28 U.S.C. § 1961.”85

B. Reinstatement/ Front Pay

Hiring or reinstatement of employees, with full retroactive seniority, is ordinarily “necessary to achieve the `make-whole’ purposes of the Act.86” Individual injunctive relief may include reinstatement, hiring, transfer, promotion, retroactive seniority, tenure and removal of adverse disciplinary records.87

Where an intervening, non-discriminatory event would have ended plaintiff’s employment, reinstatement is not appropriate. Thus, the employer’s discovery of after-acquired evidence of misconduct which would have prompted a plaintiff’s discharge is a bar to reinstatement.88 Similarly, a non-discriminatory reduction in force or termination of particular

81 See Churchill v. Star Enterprises, 3 F. Supp. 2d 622, 624 (E.D.Pa. 1998) (back pay award not subject to withholding because it is not payment “for services performed by the employee”). 82 Sears v. Atcheson, Topeka & Santa Fe Railway, 749 F.2d 1451, 1456 (10th Cir. 1984). 83 Dashnaw v. Pena, 12 F.3d 1112, 1116 (D.C. Cir. 1994); But See Eshelman v. Agere Sys.,554 F.3d 426, 441(3d Cir. Pa.2009) (rejecting Dashnaw reasoning and permitting gross up). 84 Postal Service. Loeffler v. Frank, 486 U.S. 549, 557-58 (1988). 85 See also, EEOC v. Guardian Pools, 828 F.2d 1507 (11th Cir. 1987). 86 Franks v. Bowman Transportation Co., 424 U.S. 747, 766 (1976). 87 Id.; Ingram v. Missouri Pacific Railroad, 897 F.2d 1450, 1456-57 (8th Cir. 1990); In re: Pan Am World Airways, 905 F.2d 1457, 1464-65 (11th Cir. 1990); Brown v. Trustees of Boston University, 891 F.2d 337, 359-61 (1st Cir. 1989). 88 McKennon, 513 U.S. at 362.

8.14

operations by the employer generally makes reinstatement inappropriate.89 Courts refuse to order reinstatement where there is an unusual degree of discord and antagonism between the parties, where there is not an available position, or where reinstatement would cause other employees to be displaced.90 In these circumstances, an award of front pay may be made as a substitute for reinstatement. Id. Front pay is also available when plaintiff is unable to return to her employment with defendant because of psychological injury inflicted by defendant’s acts of discrimination.91

“Front pay” is occasionally ordered in lieu of reinstatement where reinstatement is impracticable, as set out above. It represents compensation the employee would have earned, had she been reinstated. It is not open ended, but is based on wages the plaintiff would have earned over a specified period of time. Where a long service employee has been discharged because of discrimination, thereby defeating her intention to continue in the job until retirement age, some courts award front pay through the likely date of retirement.92 However, because of the “potential for windfall” to a plaintiff,93 front pay is often limited to a much shorter period of time.94 It has been held that front pay is a “special remedy, warranted only by egregious circumstances.”95 A plaintiff is not entitled to front pay rather than reinstatement merely because she prefers it.96 Where a long service employee has been discharged because of discrimination, thereby defeating her intention to continue in the job until retirement age, some courts award front pay through the likely date of retirement.97

89 Neufeld v. Searle Laboratories, 884 F.2d 335, 341 (8th Cir. 1989). 90 Goldstein v. Manhattan Industries, 758 F.2d 1435 (11th Cir.), cert. denied, 474 U.S. 1005 (1985); Woodhouse v. Magnolia Hospital, 92 F.3d 248 (5th Cir. 1996). 91 EEOC v. Gurnee Inn Corp., 914 F.2d 815, 818 n. 4 (7th Cir. 1990); Pollard v. E.I. DuPont de Nemours & Co., 532 U.S. 843, 853 (2001) (dictum). 92 Blum v. Witco Chemical Corp., 829 F.2d 367, 375-76 (3d Cir. 1987) (front pay of 8 years); Pierce v. Atchison, Topeka & Santa Fe Railway, 65 F.3d 562, 574 (7th Cir. 1995) (front pay of 10 years); Hukkanen v. International Union of Operating Engineers, 3 F.3d 281 (8th Cir. 1993) (front pay of 10 years); Padilla v. Metro-North Commuter Railroad, 92 F.3d 117 (2d Cir. 1996) (front pay of 25 years). 93 Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir.), cert. denied, 502 U.S. 963 (1991). 94 Dominic v. Consolidated Edison Co. of New York, 822 F.2d 1249, 1258 (2d Cir. 1987) (awarding two years’ front pay because two years was a reasonable amount of time for the plaintiff to find comparable employment); United Paperworkers v. Champion International Corp., 81 F.3d 798, 805 (8th Cir. 1996) (disapproving award of 24 years’ front pay, because front pay until retirement ignores the plaintiff’s duty to mitigate damages and the court’s obligation to estimate the financial impact of future mitigation). 95 Duke, 928 F.2d at 1424. 96 Blim v. Western Electric Co., 731 F.2d 1473 (10th Cir.), cert. denied, 469 U.S. 874 (1984). 97 Blum v. Whitco Chemical Corp., 829 F.2d 367, 375-76 (3rd Cir. 1987) (front pay of 8 15

8.15

C. Injunctive Relief.

Courts may issue injunctive relief against specific, unlawful employment practices. Courts have also enjoined defendants from discriminating or retaliating against the named plaintiff or others in the same protected class.98 Courts may reject claims for injunctive relief as either moot or unnecessary, especially when the employer demonstrates that the discrimination has ceased before the entry of judgment or where plaintiffs showed isolated instances of discrimination by individuals no longer employed.99 However, the defendant bears a “heavy burden of persuading the court that the challenged conduct [has ceased and] cannot reasonably be expected to start up again.100” The scope of an injunction is usually determined by the scope of the unlawful conduct at issue and the injunction normally is limited to enjoining the specific conduct found to violate the law.101 D. Compensatory Damages

In order to recover damages for emotional distress, a plaintiff must show the nature and extent of the emotional harm that has been caused by the alleged violation.102 A plaintiff may present evidence of sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self esteem, excessive fatigue, or a nervous breakdown. Physical manifestations of emotional harm may consist of ulcers, gastrointestinal disorders, hair loss or headaches.103

Several courts have held that a plaintiff’s own testimony, without corroboration from other documentation or testimony, is insufficient to support an award of more than nominal

years); Pierce v. Atchison, Topeka & Santa Fe Railway, 65 F.3d 562, 574 (7th Cir. 1995) (front pay of 10 years); Hukkanen v. International Union of Operating Engineers, 3 F.3d 281, 62 FEP 1125, 1128 (8th Cir. 1993) (front pay of 10 years); Padilla v. Metro-North Commuter Railroad, 92 F.3d 117, 72 FEP 1748, 1755 (2nd Cir. 1996) (front pay of 25 years). 98 EEOC v. Gurnee Inn Corp., 914 F.2d 815 (7th Cir. 1990). 99 Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir.), cert. denied, 498 U.S. 846 (1990) 100 Sheeley v. MRI Radiology Network, 505 F.3d 1173, 1183 (11th Cir. 2007) (ADA public accommodations case). 101 Mitchell v. Seaboard System Railroad, 883 F.2d 451 (6th Cir. 1989). 102 Price v. City of Charlotte, 93 F.3d 1241, 1254 (4th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). 103 Id. at 939, quoting, EEOC Policy Guidance No. 915.002 § II(A)(2), at 10 (July 14, 1992); Gunby v. Pennsylvania Elec. Co., 840 F.2d 1108, 1121 (3rd Cir. 1988), cert. denied, 492 U.S. 905 (1989).

8.16

damages.104 Other courts have refused to award compensatory damages because the plaintiff did not offer medical evidence regarding his or her non-economic injuries and because the plaintiff was able to continue working in her own field of work.105 However, in Bogle v. McClure, 332 F.3d 1347, 1358-59 (11th Cir. 2003), the Eleventh Circuit affirmed an award of $500,000 in emotional distress to each of several plaintiffs, where the claim was supported only by the testimony of each plaintiff as to her own injury, and no medical evidence was offered. Although Bogle was a Section 1983 employment discrimination case and not a Title VII case (hence the award in excess of the Title VII caps, described below), the decision is written in general terms and there is nothing to suggest that the standards of proof for mental/emotional distress will not apply in Title VII cases.106

E. Punitive Damages

The 1991 Civil Rights Act also amended Title VII to provide for awards of punitive damages in cases of intentional discrimination, i.e., disparate treatment claims and mixed motive cases, but not disparate impact claims. Punitive damages are available if the plaintiff proves that the defendant engaged in a discriminatory practice or practices “with malice or with reckless indifference to the federally protected rights” of the plaintiff.107

In Kolstad v. American Dental Association, 527 U.S. 526 (1999), the Court held that an employer’s conduct did not have to be egregious to warrant punitive damages. The Court noted that Title VII limits awards of compensatory and punitive damages to cases of “intentional discrimination,” but further constrains punitive damages awards only to instances of “malice” or “reckless indifference.” Id. The Court stated further that the terms “malice” and “reckless indifference” do not pertain to the employer’s awareness that it is engaging in discrimination, but to its knowledge that it may be acting in violation of federal law.108

The second holding of Kolstad was that a heightened standard of agency applies where punitive damages are sought under Title VII. In addition, in order to promote voluntary efforts to eradicate discrimination, acts of such an official which are contrary to the employer’s good faith efforts to enforce its anti-discrimination policy will not result in punitive damages.109 An employer may not be vicariously liable for the discriminatory employment decisions of

104 Price, 93 F.3d at 1255-56. 105 Spence v. Board of Education, 806 F.2d 1198 (3d Cir. 1986). 106 Cf., Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372 (7th Cir. 2011) (reduced jury verdict from $200,000 to $30,000). 107 42 U.S.C. § 1981a(b)(1); see Lawrence v. CNF Transportation, 340 F.3d 486 (8th Cir. 2003) (Title VII permits award of punitive damages in a narrow class of cases; evidence did not establish that employer acted with malice or reckless indifference toward female employee’s federally protected rights so as to be entitled to punitive damages). 108 See Smith v. Wade, 461 U.S. 30, 37 (1983). 109 527 U.S. at 544-46.

8.17

managerial agents where the decisions are contrary to the employer's “good-faith efforts to comply with Title VII.110” The Court did not comment further on what “good-faith efforts to comply with Title VII” an employer had to show to defeat liability for punitive damages.

The Kolstad inquiry into an employer's "good faith" defense is only applicable in instances of vicarious liability as opposed to a theory of direct liability for punitive damages.111 Vicarious liability applies to situations where a supervisor perpetrates harassment or discrimination himself, whereas a theory of direct liability is more appropriate where an employer fails to respond adequately to harassment of which a management-level employee knew or should have known.112. Because the Kolstad Court did not specify what "good-faith efforts to comply with Title VII" an employer has to show to defeat liability for punitive damages, it is necessarily a factual inquiry to be resolved at trial. Even if an employer had a policy that prohibited discrimination, it is not enough to simply have had such a policy in place.113 For a good faith exception to the imposition of punitive damages to apply, there must be a policy of nondiscrimination both in words and practice.114

In EEOC v. Wal-Mart Stores, 187 F.3d 1241 (10th Cir. 1999), the court held that the employer was liable for punitive damages despite a written policy against discrimination. The court found that the employer did not make a good-faith effort to educate employees about the ADA’s prohibitions; one supervisor was not aware of the requirement to make reasonable accommodations until three years after the plaintiff’s termination, and the personnel manager received no training in employment discrimination.115

In Dudley v. Wal-Mart Stores, 166 F.3d 1317 (11th Cir. 1999), the court held that punitive damages should not have been assessed for a discriminatory demotion of an employee by a low level manager at one store. There was no evidence that higher officials had knowledge

110 Id. at 545, 2129. 111 Deters v. Equifax Credit Information Services, Inc., 202 F.3d 1262, 1270 (10th Cir. 2000); Dodoo v. Seagate Technology, Inc., 235 F.3d 522, 531-532 (10th Cir. 2000). 112Deters supra at 1270, FN3. 113 Lowery v. Circuit City Stores, Inc., 206 F.3d 431 (4th Cir. 2000) cert. denied Lowery v. Circuit City Stores, Inc., 531 U.S. 822, 121 S.Ct. 66 (2000); Copley v. Bax Global, Inc., 97 F.Supp.2d 1164, 1168-1169 (S.D. Fla. 2000); Deters supra 202 F.3d 1271. 114 Copley supra at 1169. 115 Cf., Bryant v. Aiken Regional Medical Centers, Inc., 333 F.3d 536 (4th Cir. 2003), cert. denied, 540 U.S. 1106 (2004) (holding that judgment as a matter of law should have been granted where the defendant had an equal employment policy, a complaint procedure, and a training program and that “these widespread anti-discrimination efforts, …preclude the award of punitive damages in this case.”); Shramban v. Aetna, 262 F.Supp. 2d 531 (E.D. Penn. 2003), aff’d, 2004 WL 2504364 (3d Cir. 2004) (granting summary judgment on punitive damages where defendant had investigated complaints and had anti-discrimination policies and procedures).

8.18

of discriminatory acts by two individuals at one of its 2,000 locations. To be awarded punitive damages, the plaintiff would have to show that the discriminating party was high up in the corporate hierarchy or that a person in a position of authority was aware of the discrimination. Punitive damages are subject to constitutional limitations, and awards higher than nine times the compensatory damages will rarely be permissible.116

F. Caps on Compensatory and Punitive Damages

The 1991 Civil Rights Act limited the amounts of compensatory and punitive damages that can be awarded under Title VII. The caps apply to amounts awarded under 42 U.S.C §§ 1981 a(a)(1) & (b)(1)&(3), specifically on the sum of punitive damages and compensatory damages for “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” The cap does not apply to traditional Title VII relief such as wages or benefits, 42 U.S.C § 1981a(b)(2), and is specifically held not to apply to back pay or front pay.117

116 State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) (“bad faith” insurance case 117 Pollard v. E.I. DuPont de Nemours & Co., 532 U.S. 843, 853-54 (2001).

8.19

The limitation on the amount of damages is based on the size (number of employees) of the employer. The limitations are as follows:

15 to 100 employees $50,000 101 to 200 employees $100,000 201 to 500 employees $200,000 501 employees or more $300,000

The caps apply to the sum of the compensatory and punitive damages awards to an individual plaintiff, not to each award separately, or to separate counts.118 The caps apply separately to each claimant, not to the total judgment in a lawsuit. Thus in multi-plaintiff suits or cases in which the EEOC is proceeding on behalf of a number of employees, each claimant may recover up to the cap.119

III. Attorney’s Fees and Costs.

A Determining the Fee.

The Eleventh Circuit employs a three-step process to evaluate a Plaintiff's motion for attorney's fees. See Dillard v. City of Greensboro, 213 F.3d 1347, 1353 (11th Cir.2000): first, the Court must determine whether Plaintiff is a “prevailing party;” second, the court must calculate the lodestar; and third, the court must determine whether an adjustment to the lodestar is necessary. 1. Prevailing Party

Under each of the applicable fee shifting statutes, only a prevailing party may be awarded attorney’s fees. The term “prevailing” designates a party who has succeeded on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the action.120 Recovery of fees depends upon achieving a favorable result-be it monetary or equitable relief- that alters the relationship between the parties.121 The Court explained “[t]he touchstone of the

118 Smith v. Chicago School Reform Board, 165 F.3d 1142 (7th Cir. 1999); Hudson v. Reno, 130 F.2d 1193 (6th Cir. 1997). 119 EEOC v. W&O, Inc., 213 F.3d 600 (11th Cir. 2000). 120 See, Texas State Teachers Ass'n. v. Garland Indep. School Dist., 489 U.S. 792 (1989); Hensley v. Eckerhart, 461 U.S. 424, 423 (1980). 121 Canup v. Chipman-Union, Inc., 123 F.3d 1440 (11th Cir. 199), citing Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992) (“[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim.... Whatever relief the plaintiff secures must directly benefit him at the time of the judgment or 20

8.20

prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.122”

a. Farrar Reasonableness Step

In Farrar v. Hobby, 506 U.S. 103 (1992), the Supreme Court created a second step in evaluating whether a prevailing plaintiff is entitled to an award of fees, beyond the question of whether the plaintiff was the “prevailing party.” While the magnitude of a plaintiffs' victory does not impact upon the determination of whether that party is prevailing, it may nonetheless affect whether the plaintiff is entitled to fees based on Farrar’s reasonableness requirement. The Farrar Court found that, in order to satisfy its “central” responsibility to make an assessment of reasonable fees, a court must consider the circumstances of the case including a comparison of the amount of damages awarded vis-a-vis the damages sought.123 The Court held that after such a consideration a “court may lawfully award low fees or no fees” without reciting the 12 factors bearing on reasonableness, or by using the lodestar approach.124 If a civil rights plaintiff sought compensatory damages and was awarded only nominal damages, the only reasonable fee would “usually” be no fee because the failure to obtain compensatory damages evidences a failure to prove an essential element of his claim. Farrar, 506 U.S. at 112, 113 S. Ct. at 575 . Furthermore, in her concurring opinion, Justice O'Connor asserted that other factors are also important in determining whether a damage award is de minimus and incapable of supporting an award of fees. Those other factors are: the significance of the legal issue on which the plaintiff claims to have prevailed and the public purpose served by the litigation.125

Farrar seemingly contradicts Blanchard v. Bergeron, 489 U.S. 87 (1989), in which the Court had refused to limit a “reasonable attorney's fees” to a percentage of the plaintiff's recovery, despite the fact that the lawyer had contracted with his client to that effect, because to do so would place an “unreasonable emphasis . . . on the importance of the recovery of damages in civil rights litigation. The intention of Congress was to encourage successful civil rights litigation, not to create a special incentive to prove damages.126”

The reaction to Farrar’s approach to attorney’s fee awards in nominal damages cases has been to find ways to work around a largely impractical ruling. Rather than the plurality opinion, most of the circuits have adopted Justice O'Connor's concurring opinion in Farrar regarding the

settlement.”) 122 Texas Teachers, 489 U.S. at 792-93, 109 S.Ct. at 1493-94. 123 Farrar, 506 U.S. 112, 113 S. Ct. at 575 . 124 Farrar, 506 U.S. at 112, 113 S. Ct. at 575. 125 Farrar, 506 U.S. at 115, 113 S. Ct. at 578 (O'Connor, J. concurring). 126 Blanchard, 489 U.S. at 95.

8.21

award of fees in such cases and requires the court to consider: (1) the difference between the judgment recovered and the relief sought; (2) the significance of the legal issue on which the plaintiff prevailed; and (3) the public purpose of the litigation.127 Thus, by concluding that there was both public purpose and consequence to the litigation, a court may award substantial attorneys fees even where the relief obtained is only "nominal."

b. Catalyst Theory

In Buckhannon Bd. & Care Home v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the Court held, contrary to long established precedent, that an award of attorney’s fees required a formal judgment in a party's favor in order to qualify as a “prevailing party.” In reaching this conclusion, the Court rejected the statements of congressional intent by both houses of Congress that fees should be permitted even where extra-judicial settlements had been reached, stating “we doubt that legislative history could overcome what we think is the rather clear meaning of 'prevailing party' - the term actually used in the statute.” 532 U.S. at 606, 121 S.Ct. at 1841. Under the Buchannon holding, the “catalyst” theory, which had permitted recovery for attorney’s efforts resulting in pre- or post-complaint settlement of a claim, was no longer viable. The practical effect of Buchannon has been to encourage litigation that need never have been brought.

c. Pro Se Plaintiffs

The courts have held that a pro se plaintiff may not be a prevailing plaintiff entitled to attorneys' fees.128

127 See Hopwood v. State of Texas, 236 F.3d 256, 277 (5th Cir. 2000) (awarding punitive damages where “the plaintiffs accomplished the principal goal of the lawsuit - to dismantle all forms of racial preference in public higher education in Texas,”); Morales v. City of San Rafael, 96 F. 3d 359 (9th Cir. 1996); Wilcox v. Reno, 42 F.3d 550 (6th Cir. 1994) (collateral benefits from officer being disciplined); Hashimoto v. Dalton, 118 F3d 671 (8th Cir. 1997) (trained Navy to be sensitive to race and gender issues); Koopman v. Water Dist. of Johnson County, 41 F.3d 1417 (10th Cir. 1994) (sent message about need for pretermination hearings); Duckworth v. Whisenant, 97 F.3d 1393 (11th Cir. 1996) (encouraged police internal investigations of excessive force claims); Cabrera v. Jakabovita, 24 F. 3d 372 (2nd Cir. 1994) (creation of new rule of liability); Muhammad v. Lockhart, 104 F.3d 1069 (8th Cir. 1997) (encouraged prison officials to perform constitutional duty); Shrader v. OMC Aluminum Boat Group, 128 F.3d 1218 (8th Cir. 1997) (furthered public interest in "providing a fair playing field in the work place"). 128 Kay v Ehrler 499 US 432, 113 L Ed 2d 486, 111 S Ct 1435 (1991); Rodgers v Western-Southern Life Ins. Co. 792 F Supp 628 (ED Wis. 1992) (prevailing Title VII racial

8.22

d. Partial Success

Florida has recognized that an attorney’s fee should not be reduced in most circumstances for failing to succeed on a related claim. The Florida Supreme Court in Florida Patients’ Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla. 1985) suggested that a trial court may reduce a lodestar figure depending upon the “results obtained”, but the results obtained may only justify reduction in the lodestar if a prevailing party is unsuccessful on a claim that is completely unrelated to the ones on which he or she prevails.129 The trial court must evaluate the relationship of all of the claims, and should indicate in its order whether or not the unsuccessful claims can be separated from the successful ones.130 “If the claims can be separated in this manner, the trial court may attempt to identify specific hours spent in unsuccessful and unrelated claims or simply reduce the award by some proportion based upon the unsuccessful and unrelated claims.” Id. “A prevailing party should not be punished merely for failing to recover the entire amount which was claimed in good faith to be due.131”

As with the state courts, the federal courts have determined that a court may not reduce an award of attorney’s fees merely because the plaintiff failed to prevail on every contention:

Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.132

Indeed, “[w]here time spent on unsuccessful issues is difficult to segregate, no reduction of fees is required.133”

harassment pro se plaintiff not entitled to an award of attorneys' fees). 129 Fashion Tile & Marble, Inc. v. Alpha One Construction & Assocs., Inc., 532 So.2d 1306 (Fla. 2d DCA 1988) 130 Id, at 1308. 131 Id. at 1309. 132 Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940 (1983). 133 Abell v. Potomac Inc. Co. of Illinois, 946 F.2d 1160, 1169 (5th Cir.1991), cert. denied, Fryar v. Abell, 112 S.Ct. 1944, 118 L.Ed.2d 549 (1992).

8.23

The Eleventh Circuit has established standards to determine whether a particular unsuccessful claim shares "a common core of facts" with the successful claim or is based on an "unrelated legal theory." In Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1137 (11th Cir. 1984), a multi-claim employment discrimination case, the Court found that if the facts developed in the context of the unsuccessful claims “were also probative” of the successful claim, then the time expended on the unsuccessful issues should be compensated.134

In other words, two distinct inquiries' must be made: (1) are the two claims (that is, the successful one and the unsuccessful one) "unrelated"? and (2) if the claims are "related", did the result achieved justify the effort expended, even if some claims or legal theories were ultimately rejected? These are two separate inquiries. Concerning the first query (whether the claims are related or unrelated) the Court noted that "cases involving such unrelated claims are unlikely to arise with great frequency.135" The reason is that for claims to be regarded as "unrelated", they must be "distinctly different claims for relief that are based on different facts and legal theories." 461 U.S. 434. For a claim to be regarded as "unrelated", it must be "distinct in all respects from [the] successful claims.136" Where, on the other hand, plaintiff's claims involve "a common core of facts or [are] based on related legal theories", or "[m]uch of counsel's time [is] devoted generally to the litigation as a whole", the claims are not regarded as "unrelated".137 "Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.”

As the Ninth Circuit observed in a fee awards case under a civil rights statute, 42 U.S.C. §1988, “Rare, indeed, is the litigant who doesn't lose some skirmishes on the way to winning the

134 See also Foster v. Bd. of School Commissioners, 810 F. 2d 1021, 1023-4 (11th Cir., cert. den., 484 U.S. (1987) (limited reduction of fees for time spent on claims of unsuccessful plaintiffs in class action because “most of the attorney hours were spent on general research and investigation applicable to all claims” evideince adduced in unsuccessful claims contributed to victorious claim); Afro-American Patrolman’s League v. Atlanta, 817 F.2d 719, 725-6 (11th Cir. 1987) (interrelated issues of validity of promotional exam and legality of city’s abandonment of promotion procedure in Title VII action preclude fee reduction for unsuccessful part of case); Goodson v. City of Atlanta, 763 F.2d 1381, 1389-90 11th Cir. 1985) (upholding award on hours for losing false arrest claim and winning jail conditions claim, "the court finds that a good trial lawyer would have tried to get into evidence that this client was arrested and jailed because of a mistaken identification"). 135 Hensley v. Eckelhart, 461 U.S. 435. 136 Id., at 440. 137 Id., at 435.

8.24

war.138” The Eleventh Circuit has acknowledged that reduction in the lodestar may only be made in specific instances, when unsuccessful claims are distinct and unrelated to the successful ones.139 It is therefore inappropriate for a trial court to merely reduce fees based on a mere percentage of the claims in which a plaintiff was successful.

2. Lodestar.

Calculation of attorney’s fees should be based on evaluating the normal cost of attorney’s fees in the applicable legal community. “The object of judicial fee determination is to simulate the results that would obtain if the lawyer were dealing with a paying client.140” A reasonable attorney’s fee is computed initially by multiplying the number of hours expended by a reasonable hourly fee. This is called the “lodestar”.141 That “lodestar” amount is then adjusted upward or downward to account for results obtained, contingency, delay in receipt of payment, case undesirability, or other Johnson factors suggesting adjustment of the “lodestar” fee.142 The “fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates.143” That burden includes “supplying the court with specific and detailed evidence from which the court can determine the reasonable hourly rate. Further, fee counsel should have maintained records to show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity.... A well-prepared fee petition also would include a summary, grouping the time entries by the nature of the activity or stage of the case.” Id.

a. Duplication of Effort "Where a party engages separate counsel to represent it on various aspects of an action, attorney's fees to each counsel are not precluded provided that the services rendered are

138 Cabrales v. County of Los Angeles, 935 F.2d 1050, 1053 (1991). 139Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1302 (11th Cir. 1988) . 140 Henry v. Webermeier, 738 F.2d 188, 195 (7th Cir. 1984). 141 See Florida Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1150-51 (Fla. 1985); Johnson v. Georgia Highway Express, Inc., 488 F.2nd 714, 717 (5th Cir. 1974) (“hours claimed or spent on a case . . . are a necessary ingredient to be considered.”); Hensley v. Eckerhardt, 461 U.S. 424 (1983) (hours claimed are “the most useful starting point for determining the amount of a reasonable fee.”). 142 Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Loranger v. Stierheim, 10 F.3d 776, 781, (11th Cir. 1994). 143 Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1303 (11th Cir.1988).

8.25

necessary, not duplicative, and the total fee is reasonable.144" “A reduction [in a fee] is warranted only if the attorneys are unreasonably doing the same work.145” An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation.146 An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation.147"

It is not an unreasonable practice for an attorney to bill a client for time spent conferring with another attorney working on the case. "Intra-office conferences among attorneys familiar with and working on particular litigation enhance the possibility of competent and efficient litigation, and hours spent in such conferences are not reduced under the rubric of 'billing judgment' unless the result is unproductive.148"

b. Fees in Local Marketplace The reasonable hourly rate is defined as the "prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.149" A fee applicant's customary billing rate for his hourly fee-paying clients "ordinarily is the best evidence of his market rate.150" The Supreme Court has repeatedly stressed that the manner in which the local marketplace customarily treats legal fees is determinative of the manner in which they should be calculated in a 1988 case. Even when a plaintiff is

144 Florida Drilling & Sawing v. Fohrman, 635 So.2d 1054, 1055-56 (Fla. 4th DCA 1994); Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1302 (11th Cir.1988); Walker v. U.S. Dept. Of Hous. and Urban Dev., 99 F.3d 761, 768 (5th Cir. 1996) (allowing compensation for more than one attorney at depositions, hearings, negotiations, and other activities). But see, Riley v. City of Jackson, Mississippi, 99 F.3d 757, 760 (5th Cir. 1996) (finding non-compensable duplication in "intraoffice conferences"). 145 Afro-American Patrolmen's League v. City of Atlanta, 817 F.2d 719, 726 (11th Cir. 1987). 146 Johnson v. Univ. Coll., 706 F.2d 1205, 1208 (11th Cir.1983). 147Johnson v. University Coll. of the Univ. of Ala. in Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1993). 148 Lenihan v. City of New York, 640 F. Supp. 822, 826 (S.D. N.Y. 1986) (quoting Veterans Educ. Project v. Sec'y of the Air Force, 515 F. Supp. 993, 994 (D.D.C. 1981). 149 Barnes, 168 F.3d at 436 (quoting Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988)). 150 Lambert v. Fulton Co., 151 F.Supp.2d 1364, 1373 (N.D.Ga.2000), aff'd, 253 F.3d 588 (11th Cir.2001), cert. denied, 122 S.Ct. 2361 (2002).

8.26 represented by a public interest law firm or other not-for-profit entity, a “reasonable fee” is calculated under prevailing market rates in the relevant community.151

c. Effect of Contingent Fee Relationship on the Lodestar

The percentage set forth in a contingent fee contract does not create a presumption that the contractual fee is reasonable.152 The contingent percentage does not limit the amount available to a plaintiff against a losing defendant.153 Courts conduct a reasonable fee analysis even though a lawyer may have taken the case on a contingent fee.154 Likewise, the rates established in the retainer agreement do not govern the court in determining a reasonable fee.155

In Venegas v. Mitchell, 495 U.S. 82, 110 S.Ct. 1679, 109 L.Ed.2d 74 (1990), the Supreme Court addressed whether the fee shifting provisions of 42 U.S.C. § 1988 for prevailing civil rights plaintiffs operated as an upper bound on what the plaintiff was obligated to pay his attorney pursuant to a contingency fee agreement. The Court found that the statute did not regulate what plaintiffs may promise to pay their attorneys, nor was there anything in the legislative history that suggested that Congress intended § 1988 to limit civil rights plaintiffs' ability to contract with their attorneys. Id. at 86-87. The Court reasoned that if civil rights plaintiffs could waive their causes of action entirely, “there is little reason to believe that they may not assign part of their recovery to an attorney if they believe that the contingency arrangement will increase their likelihood of recovery.” Id. at 88. The Court concluded that the statute did not impose a ceiling on compensation, and that parties could contract for contingency fees or hourly rates in excess of what would be a reasonable fee under the statute. Id. at 90. A fee shifting statute “controls what a losing defendant must pay, not what the prevailing plaintiff must pay his lawyer.” Id156.

151 Blum v. Stenson 465 U.S. 886, 893, 104 S.Ct. 1541, 1546 (1984), citing Davis v. County of Los Angeles, 8 E.P.D. ¶ 9444 (C.D.Cal.1974) 152 Wells v. Bowen, 855 F.2d 37, 45 (2d Cir.1988); Brown v. Sullivan, 917 F.2d 189, 192 (5th Cir. 1990) (“contingent fee agreements, do not inevitably produce a ‘reasonable’ fee.”) 153 Blanchard v. Bergeron, 489 U.S. 87 (1989). 154 Kay v. Apfel, 176 F.3d 1322 (11th Cir. 1999), abrogated Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct. 1817 (2002). 155 Guam Society of Obstetrician and Gynocologists v. Ada, 100 F.3d 691, 697 (9th Cir. 1996). 156 The Florida Bar has addressed this matter in Ethics Opinion 67-1, finding that a judicial award of attorney’s fees from a defendant does not preclude a successful plaintiff’s attorney from also taking a percentage of the awarded damages through a contingency fee agreement.

8.27

The First District Court of Appeal held in Winn-Dixie Stores, Inc. v. Reddick, 954 So.2d 723 725 (Fla. 1st DCA 2007) that a contingency fee multiplier was not available under the Florida Civil Rights Act. The Reddick court held that the legislative intent was to incorporate federal decisional law into the Florida statute, and therefore federal decisions since the enactment of the statute prevent the award of a contingency fee multiplier. The First DCA relied on Burlington v. Dague, 505 U.S. 557, 120 LEd 2d 449, 112 S.Ct. 2638 (1992), and its progeny, even though this line of federal cases established a federal common law that rejected fee multipliers, rather than an intent to interpret Title VII in particular in such fashion. Reddick therefore replaced Florida’s common law standard adopting multipliers with the federal common law standard rejecting them.

3. Modifications to the Lodestar

In determining the reasonableness of the hourly fee, courts should apply the following criteria enunciated in Rule 4-1.5, Rules Regulating the Florida Bar, Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) , and Hensley: (1) The time and labor required; (2) The novelty and difficulty of the questions; (3) The skill requisite to perform the services properly; (4) The preclusion of other employment by the attorney due to acceptance of the case; (5) The customary fee; (6) Whether the fee is fixed or contingent; (7) Time limitations imposed by the client or circumstance; (8) The amount involved and the results obtained; (9) The experience, reputation, and ability of the attorneys; (10) The undesirability of the case; (11) The nature and length of the professional relationship with the client; and (12) Awards in similar cases.

8.28

The Johnson "List of Twelve" approach has been criticized.157 In one concurring opinion Justice Scalia laments the majority's "excessive preoccupation" with the Johnson factors in adjusting the lodestar calculation.158 It has, however, survived and remains the standard.159

The Eleventh Circuit in Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299-1301 (11th Cir. 1988) has developed its own rubric for the award of attorney’s fees, which acknowledges Johnson in a number of respects:

1. Determine Reasonable Hourly Rate by multiplying hours reasonably expended by a reasonable hourly rate. (“In evaluating comparability of the market rates being attested to, the district court may wish to consider any of the Johnson factors to the extent that they suggest that comparables offered may not be relevant to the issues before the court or as they may affect the weight to be given to the comparables being offered the court.” Id. at 1299-1300).

2. Determine Hours Reasonably Expended, by excluding excessive, redundant or otherwise unnecessary hours and deducting time spent on discrete and unsuccessful claims.

3. Adjustments of the Lodestar for results obtained.

Johnson Factors 1-3. Time, Labor, Difficulty, Novelty Skill

The first factor, the time and labor required, is necessarily included in the lodestar and cannot be double counted.160 The Supreme Court has significantly restricted the use of the

157 See, e.g., Bhandari v. First Nat’l Bank of Commerce, 808 F.2d 1082, 1104 (5th Cir. 1987). 158 Blanchard v. Bergeron, 489 U.S. at 7, 109 S.Ct. at 947, citing to the supposed emancipation from Johnson in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 563-65, 106 S.Ct. 3088, 3097-98, 92 L.Ed.2d 439 (1986) 159 . See Loranger v. Stierheim, 10 F.3d 776, 781, n. 2 (11th Cir. 1994), (noting that “[a]lthough [Johnson’s] balancing test has since been displaced by the lodestar formula, we have expressed our approval of district courts considering the Johnson factors in establishing a reasonable hourly rate”); NAACP v. City of Evergreen, 812 F.2d 1332, 1337, n. 6 (11th Cir.1987)(Johnson factors may be considered in terms of their influence on the lodestar amount.) 160 Walker v. U.S. Dep't of Hous. and Urban Dev., 99 F.3d 761, 771 (5th Cir.1996).

8.29 novelty and difficulty of the question; the skill requisite to perform the legal services properly; the experience, reputation, and ability of the attorneys; and the amount involved and the results obtained (the second, third, eighth, and ninth factors) to serve as an independent basis to enhance the lodestar.161 Any "[e]nhancements based upon these factors are only appropriate in rare cases supported by specific evidence in the record and detailed findings by the courts.162"

Factor 4. Preclusion of Other Employment

This factor "involves the dual consideration of otherwise available business which is foreclosed because of conflicts of interest which occur from the representation, and the fact that once the employment is undertaken the attorney is not free to use the time spent on the client's behalf on other purposes.163" In order to obtain this adjustment, the record must convincingly demonstrate how the factor affects the value of legal services in the local marketplace.164

161 Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). 162 Walker v. U.S. Dep't of Hous. and Urban Dev., 99 F.3d 761, 771-772 (5th Cir.1996).(citing Delaware Valley, 478 U.S. at 565)). 163 Johnson, 488 F.2d at 718 (counsel "entitled to some premium" for being "called in to... handle other matters at a late stage in the proceedings," or otherwise to adjust and compensate adequately for preclusive effects of representation); Bowe v. Colgate-Palmolive Co., 443 F.Supp. 696, 719 (S.D. Ind. 1977) (economic impact of preclusive effects of protracted litigation “not reflected in a classic ‘hours times rate equals fee’ equation”); Northcross v. Bd. of Educ. of Memphis City Schools, 611 F.2d 624, 638 (6th Cir. 1979) (rate is not reasonable if it "does not take into account special circumstances, such as unusual time constraint"); Daly v. Hill, 790 F.2d 1071, 1082 n. 15 (4th Cir. 1986) (district court required to take into account "the effect of the case on an attorney's ability to do other potentially lucrative work [which] may in some cases make an upward adjustment of the hourly rate necessary to accomplish full compensation"); Morales v. Feliciano Hernandez Colon, 697 F.Supp. 60 (awarding adjustment on account of "preclusion of more remunerative employment due to the acceptance of this case"); Allen v. Freeman, 694 F. Supp. 1554, 1556 (S.D. Fla. 1988) (enhancement supported by the fact that small firm’s acceptance of case precluded ability to accept other cases); cf. Mashburn v. Nat’l Healthcare, Inc., 684 F.Supp. 679,701 (M.D. Ala. 1988) (adjusting fee upward because counsel had to "turn down potentially winning cases that they otherwise would have accepted had it not been for their time commitment to this case"). 164 Alberti v. Klevenhagen, 896 F.2d 927, 935 (5th Cir. 1990) (reversing enhancement for preclusive effects of representation where claims contrary to court's understanding of customs in

8.30

Factor 5. The Customary Rate in the Relevant Market

“The customary fee for similar work in the community should be considered.” Johnson, 488 F.2d at 718. The best evidence of the customary rates is the normal non-contingent hourly billing rates of the attorneys representing the prevailing party.165 It is, however, “not a sole determinative factor.166"

Factor 6. Is the Fee Fixed or Contingent?

"This factor focuses judicial scrutiny solely on the existence of any contract for fees that may have been executed between the party and his attorney.167""The fee quoted to the client or the percentage of the recovery agreed to is helpful in demonstrating the attorney's fee expectations when he accepted the case.168"

In Quanstrom the Florida Supreme Court considered contingency risk multipliers for three categories: (i) public policy enforcement cases; (ii) tort and contract claims; and (iii) family law, eminent domain, estate and trust matters. The Court approved the use of multipliers in Category II cases, rejected the general use of multipliers in Category III cases, and stated that in certain instances enhancement in Category I cases may be appropriate.

Factor 7. Time Limitations

Where there has been "[p]riority work that delays the lawyer's other legal work," this factor requires "some premium." "The reasonableness of a fee may also be considered in the light of awards made in similar litigation within and without the court's circuit.169" private practice). 165 See, Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984). 166 Id at 1547. 167 Medders v. Autauga County Bd. of Educ., 858 F.Supp. 1118, 1127 (M.D.Ala.1994) (Thompson, J.) (citing Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. at 723, 107 S.Ct. at 3085). 168 Johnson, 488 F.2d at 718. 169 Johnson, 488 F.2d at 718.

8.31

Factor 8. Significance of the Litigation and the Results Obtained

The results obtained is a variable cited by Johnson and also by the Eleventh Circuit in Norman. Nonetheless, the amount recovered by a plaintiff should not limit the award of attorney’s fees. 170

Factor 9. Experience and Reputation of Counsel

As a general rule, an attorney's skill, ability, and efficiency may sometimes justify an hourly rate at the high end of the customary range.171 However, the converse is true as well. Where an attorney's inexperience results in inefficiency, the inexperience should be reflected in a lower hourly rate.172 The Eleventh Circuit in Norman spent considerable time discussing the effects of a lawyer’s skill and reputation on attorney’s fees.173 . Seemingly, Norman’s emphasis on attorney skill suggests a willingness to enhance the lodestar for attorney skill demonstrated during the course of the case. The “Eleventh Circuit looks to skill as the ultimate determinate of compensation level because experience and reputation are a mirror image of skill.174” The Norman court emphasized that skill is a means for a court to judge where in the range of community attorney’s fees a particular attorney falls. Factor 10. Undesirability of the Case

"Civil rights attorneys face hardships in their communities because of their desire to help the civil rights litigant.... Oftentimes [his or her] decision to help eradicate discrimination is not pleasantly received by the community or his contemporaries.175"

170 See Fashion Tile & Marble, Inc. v. Alpha One Constr. & Assocs, Inc., 532 So.2d 1306 (Fla. 2d DCA 1988); Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990). For example, the Florida Supreme Court approved an award of $253,500.00 in attorney’s fees to now Circuit Judge Ronald B. Alvarez in recovering a $600.00 medical bill for a thermographic examination. See State Farm Fire & Casualty Co. v. Palma, 555 So.2d 836 (Fla. 1990); see also Baker v. Varela, 416 So.2d 1190 (Fla. 1st DCA 1982) ($20,000.00 in attorney’s fees to medical malpractice plaintiff who recovered a judgment of only $15,000.00). 171 . Dillard v. City of Elba, 863 F.Supp. 1550, 1553 (M.D. Ala. 1993). 172 Curry v. Contract Fabricators Inc. Profit Sharing Plan, 744 F.Supp. 1061, 1071 (M.D. Ala. 1988), aff'd, 891 F.2d 842 (11th Cir. 1990). 173 836 F.2d at 1301-1302 174Peacock v. Bank of America Corp. 133 F.Supp.2d 1322, 1327 (M.D.Fla., 2000). 175 Johnson, 488 F.2d at 719. See Allen v. Freeman, 694 F. Supp. 1554, 1556 (S.D. Fla. 1988) (enhancement supported by “undesirability of suing the police in the relatively small

8.32

Factor 11. Nature and Length of Professional Relationship with Client

In Younger v. Glamorgan Pipe & Foundry Co. 418 F Supp 743, (WD Va), vacated on other grounds 561 F2d 563 (4th Cir. 1976), the court observed that attorneys often vary their fees depending upon the nature and length of their relationship with an individual client and charge regular clients a lower fee than a "walk-in" client. The court therefore granted a greater fee based on the lack of a continuing relationship between attorney and client.

The Eleventh Circuit cited as an example of the utility of the Johnson factors that “it is not unusual for a law firm representing a governmental entity on an ongoing basis to charge substantially lower hourly rates than would be charged for representation in a single case.” Norman, 836 F.2d at 1300.

Factor 12. Awards in Similar Cases

"The reasonableness of a fee may also be considered in the light of awards made in similar litigation within and without the court's circuit.176"

B. Other Attorney’s Fee Issues

1. Attorney’s Fees for Time Spent Litigating Entitlement to Fees.{ TC \l1 "

B. Other Attorney’s Fee Issues

1. Attorney’s Fees for Time Spent Litigating Entitlement to Fees.}

The First DCA has recognized that time litigating the entitlement and amount of attorney’s fees is compensable under the Florida Civil Rights Act, which is modeled after Title VII.177 Federal law has long recognized that Title VII plaintiffs are entitled to attorney’s fees community of Monroe County”). 176 Johnson, 488 F.2d at 719. 177 Winn-Dixie Stores, Inc. v. Reddick, 954 So.2d 723 (Fla. 1st DCA 2007)

8.33

spent for the time litigating their entitlement to fees. In Johnson v. State of Mississippi, 606 F.2d 635 (5th Cir. 1979), the former Fifth Circuit evaluated a plaintiff’s request for reimbursement for hours spent litigating the issue of entitlement to attorney’s fees. The Fifth Circuit reviewed the rulings of other Circuits regarding the entitlement of attorney’s fees and concluded that “Attorney’s fees may be awarded for time spent litigating the fee claim.” Id. at 638. Along with the Fifth, each and every other federal circuit has addressed the issue and has found that attorney’s fees should be awarded to a Title VII plaintiff for litigating entitlement to attorney’s fees178.

Florida has recognized that federal fee shifting statutes, and specifically Title VII, have enacted a different approach for awarding attorney’s fees for the litigation of attorney fee entitlement, but has adopted a different standard for non-FCRA claims for fees for litigating fee entitlement:

We recognize that federal courts that have addressed the issue have not distinguished between entitlement to attorney's fees and the amount of attorney's fees, but instead permit fees for the entire time spent on the issue. See generally Marguerite H. Davis & Judge James C. Hauser, A Plea for Uniformity, 64 Fla.B.J., Apr. 1990, at 33 (reviewing both federal and state case law relating to the issue of whether a prevailing party may recover attorney's fees for litigating the issue of attorney's fees). In awarding fees for litigating all issues relating to attorney's fees, the federal courts have noted that such awards comport with the

178 Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978)Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978); Gagne v. Maher, 594 F.2d 336 (2d Cir. 1979), aff'd on other grounds 448 U.S. 122Gagne v. Maher, 594 F.2d 336 (2d Cir. 1979), aff'd on other grounds 448 U.S. 122;David v. Scranton, 633 F.2d 676 (3d Cir. 1980) David v. Scranton, 633 F.2d 676 (3d Cir. 1980); Hymes v. Harnett County Bd. of Educ., 644 F.2d 410 (4th Cir. 1981)Hymes v. Harnett County Bd. of Educ., 644 F.2d 410 (4th Cir. 1981); Weisenberger v. Huecker, 593 F. 2d 49 (6th Cir. 1979), cert. denied, 444 U.S. 880Weisenberger v. Huecker, 593 F. 2d 49 (6th Cir. 1979), cert. denied, 444 U.S. 880;Muscare v. Quinn, 680 F.2d 42 (7th Cir. 1982) Muscare v. Quinn, 680 F.2d 42 (7th Cir. 1982); Jones v. MacMillan Bloedel Containers, Inc., 685 F.2d 236 (8th Cir. 1982)Jones v. MacMillan Bloedel Containers, Inc., 685 F.2d 236 (8th Cir. 1982); McGrath v. County of Nevada, 67 F. 3d 248 (9th Cir. 1995) McGrath v. County of Nevada, 67 F. 3d 248 (9th Cir. 1995); Littlefield v. Deland, 641 P. 2d 729 (10th Cir. 1981)Littlefield v. Deland, 641 P. 2d 729 (10th Cir. 1981); Fewquay v. Page, 907 F.2d 1046 (11th Cir. 1990)Fewquay v. Page, 907 F.2d 1046 (11th Cir. 1990).

8.34

purpose behind most statutory fee authorizations, namely to encourage attorneys to represent indigent clients. See, e.g., Prandini v. Nat’l Tea Co., 585 F.2d 47, 53 (3d Cir.1978) (awarding fees in a Title VII class action).

State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 833 (Fla. 1993).

The courts have frequently warned losing litigants against "engaging in a purely vindictive contest over fees," Nat’l Assoc. of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1330 (D.C. Cir. 1982), because of the significant attorneys fees they can expect to be assessed against them when they engaged in ill-considered or ill-advised fee litigation until the bitter end.179

2. Travel Time

“[L]awyers invariably charge their clients for travel time [because] when a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have charged that or another client if he had not been traveling.180” While travel costs are normally recoverable under 42 U.S.C. §1988181, travel time is sometimes not compensated or only at a reduced rate.182

179 See, e.g., Perkins v. New Orleans Athletic Club., 429 F. Supp. 661,667 (E.D. La. 1976) ("those who elect a militant defense in the face of a statute allowing attorney's fees if they are defeated must take into account the time and effort they exact from their opponents"); Knighton v. Watkins, 616 F.2d 795, 799 (5th Cir. 1980) ("Defendants are not required to lie supine . . . they are entitled to resist vigorously. The right to determined contest, however, has a concomitant duty: the obligation to pay reasonably for the effort that a defense exacts from opposing counsel if the claim proves to be meritorious"); State of Arizona v. Maricopa County Medical Society, 578 F. Supp. 1262, 1276 (D. Ariz. 1984) C [a] losing party.., would be well- advised to contest only those attorney fee issues, factual or legal, as to which there is grounds for fair dispute. Otherwise, the successful party is afforded the opportunity to expand the basic fee dispute itself into a substantial fee generating proceeding") 180 Henry v. Webermeier, 738 F.2d 188, 194 (7th Cir. 1984). 181 Grendel's Den, Inc. v. Larkin, 749 F2d 945, 956-57 (1st Cir. 1985) 182 Compare Hart v. Bourque 798 F2d 519, 523 (1st Cir. 1986) (denying travel time) and Johnson v. Univ. Coll., 706 F2d 1205, 1208 (11th Cir. 1983) (travel time compensated at reduced rate) with Henry v. Webermeier, 738 F2d 188, 194 (7th Cir. 1984) (travel time compensated at full rate because "when a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have charged that on another client if he had not been travelling.")

8.35

3. Research

It has been found that a reasonable amount of time expended in general, ongoing legal research, designed to maintain a lawyer's currency in recent developments affecting a case generally (rather than being directed to specific legal issues presented by a case) may be compensable.183 Other courts have disagreed with granting fees for generalized research.184

“[I]n general, attorney research time is greatly reduced by the use of computer research. However, Westlaw charges are not an exact substitute for an attorney's hourly rate. Moreover, some part of Westlaw's charges must be considered overhead, if for no other reason than the fact that law firms do not charge clients for law books.185

D. Costs and Expenses

The First DCA in Winn-Dixie Stores, Inc. v. Reddick, 954 So.2d 723, 730-731 (Fla. 1st DCA 2007) found that under Title VII, costs are awarded as a part of attorney’s fees:

183 See Alberti v. Sheriff of Harris County, 688 F.Supp. 1176, 1187 (S.D. Tex. 1987), aff’d in part, rev’d in part, 903 F.2d 352 (5th Cir. 1990) ("settled case law holds that counsel are entitled to recover attorneys fees under 1988 for time expended in general background research so long as the research is (1) relevant, and (2) reasonable in terms of time for the scope and complexity of the litigation”); Spell v. McDaniel, 616 F.2d 1069, 1098 (E.D.N.C. 1985) (allowing compensation for reading materials on the history of public training in North Carolina and a handbook on police misconduct); Brady v. Wal-Mart Stores, Inc. 455 F.Supp.2d 157, 213 (E.D.N.Y.,2006) (rejecting defense challenge to 88 hours of “generalized ‘research”). 184 Erickson v. City of Topeka, Kansas, 239 F.Supp.2d 1202 (D. KS 2002) (time spent by attorneys researching basic elements of a Title VII racial discrimination or hostile work environment claim, and researching whether free speech provision in the Kansas constitution was broader than that of the First Amendment was not recoverable under § 1988 as attorney fees by prevailing plaintiff in civil rights action; such research constituted general background research.)In re Vancil Contracting, Inc., 2008 WL 207533, 4 (Bkrtcy.C.D.Ill.,2008) (no fees should be allowed for general research on areas of the law which should be well-known to bankruptcy practitioners); Kaltenbach v. Nicholson 2006 WL 2106639, 4 (Vet.App.,2006) (“the Court will generally disallow compensation for general or background research based on the inexperience of counsel) 185 Cairns v. Franklin Mint Co., 115 F.Supp.2d 1185 (C.D.Cal.2000);

8.36

Federal case law has stated that “an award of attorney's fees in a civil rights case should include reasonable out of pocket expenditures of the attorney beyond normal overhead. These nonstatutory costs [which are] subsumed within the reasonable attorney's fee could include compensation for postage, long distance calls, photocopying, travel, paralegals, expert witnesses, and computerized legal research.”

The court in Cappeletti Brothers, Inc. v. Broward County, 754 F. Supp. 197 (S.D. Fla. 1991) explained that Title VII allows for the award of expenses beyond the costs which would otherwise be recovered under general cost-recovery standards, because such additional expenses are subsumed within the concept of a reasonable attorney’s fee under Title VII. Therefore, in a civil rights case, a prevailing plaintiff is entitled to reasonable out of pocket expenses for any costs other than those normally paid by an attorney as regular office overhead.186

Treatment of costs as part of the Title VII fee entitles a prevailing plaintiff to recover a large variety of costs which would not otherwise be taxed.187 The Eleventh Circuit explained: “[r]easonable attorneys' fees under the Act must include reasonable expenses because attorneys' fees and expenses are inseparably intertwined as equally vital components of the costs of litigation. Dowdell v. City of Apopka, Florida, 698 F.2d 1181, 1190 (11th Cir. 1983).

186 Id., citing Allen v. Freeman, 122 F.R.D. 589 (S.D. Fla. 1988)Allen v. Freeman, 122 F.R.D. 589, 591 (S.D. Fla. 1988); See e.g. Wales v. Jack M. Berry, Inc., 192 F.Supp.2d 1313 (M.D. Fla. 2001)Wales v. Jack M. Berry, Inc., 192 F.Supp.2d 1313, 1329 (M.D. Fla. 2001);Stewart v. Town of Zolfo Springs, 1998 WL 776848, (M.D. Fla. 1998) Stewart v. Town of Zolfo Springs, 1998 WL 776848, (M.D. Fla. 1998); American Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas County, 278 F.Supp.2d 1301 (M.D. Fla. 2003)American Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas County, 278 F.Supp.2d 1301, 1328 (M.D. Fla. 2003). 187 Martin v. City of Indianapolis, 28 F.Supp.2d 1098, 1107 (S.D. Ind. 1998), aff'd, 192 F.3d 608 (7th Cir.1999) (“[S]ome of the costs listed by [plaintiff's] counsel, including travel expenses, long-distance telephone calls, photocopying services and express mail charges, are more properly labeled ‘litigation expenses,’ which generally are compensable as part of a reasonable attorney's fee, rather than costs.”);Downes v. Volkswagen of Am., Inc., 41 F.3d 1132 (7th Cir.1994) Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1144 (7th Cir.1994); Bennett v. Central Telephone Co. of Illinois, 619 F.Supp. 640 (N.D.Ill.1985) Bennett v. Central Telephone Co. of Illinois, 619 F.Supp. 640, 643 n. 1 (N.D.Ill.1985) (“Such expenses are consistently treated as recoverable as part of ‘attorneys’ fees’ in the broad sense”); Schultz v. Amick, 955 F.Supp. 1087 (N.D. Iowa 1997) Schultz v. Amick, 955 F.Supp. 1087, 1116 (N.D. Iowa 1997) (same).

8.37

Under the FCRA, which recognizes Title VII for the purposes of the award of attorney’s fees, an award of reasonable expenses of litigation is not limited to the Florida Statewide Uniform Guidelines for Taxation of Costs.188

Costs awardable under the Title VII standard include such things as travel, food, lodging expenses, telephone expenses, mileage, photocopying and hotel expenses, paralegal expenses, computerized legal research189, expert witnesses, and other similar types of expenses.

A prevailing party may recover witness fees even for non-testifying witnesses if the party can show that a witness’ attendance at trial was reasonably necessary.190

The cost of mock trials or focus groups have been permitted by various courts.191 The costs of mock trials was awarded by the Southern District of New York in the case of BD, et al v.

The Florida Uniform Guidelines do not purport to alter the substantive law with regard to the entitlement to any item of costs. See KMS of Florida Corp. v. Magna Properties, Inc., 464 So.2d 234 (Fla. 5th DCA 1985) KMS of Florida Corp. v. Magna Properties, Inc., 464 So.2d 234 (Fla. 5th DCA 1985). 189 A Florida court addressing the taxability of costs under the Uniform Guidelines recently held that computerized research “charges are overhead and not properly taxable as costs.” Wood v. Panton & Co. Realty, Inc. 950 So.2d 534, 536 (Fla. 4th DCA 2007) 190 George v. GTE Directories Corp., 114 F.Supp.2d 1281, 1299 -1300 (M.D. Fla. 2000), citing Spanish Action Committee of Chicago v. City of Chicago, 811 F.2d 1129 (7th Cir. 1987) Spanish Action Committee of Chicago v. City of Chicago, 811 F.2d 1129, 1138 (7th Cir.1987) (holding that “district court erred in concluding that physical presence in the courtroom is necessary to recovering witness fees. Fees paid to a witness who was subpoenaed but did not actually attend the trial may be allowed as costs ‘when it was reasonably expected that his attendance would be necessary and he had held himself in readiness to attend.’”) 191 In Sigley v. Kuhn, 2000 WL 145187, 205 F.3d 1341 (6th Cir.2000)Sigley v. Kuhn, 2000 WL 145187, 205 F.3d 1341 (6th Cir.2000), the Sixth Circuit Court of Appeals permitted reimbursement for the costs of obtaining jurors and paying expenses for a mock trial because mock trials confer benefits to the prevailing party by helping to produce favorable results, citing Charles v. Daley, 846 F.2d 1057 (7th Cir. 1988)Charles v. Daley, 846 F.2d 1057, 1076-77 (7th Cir. 1988).

8.38

Dubuno, 177 F. Supp.2d 201 (S.D. NY 2001), in which the court recognized the practice of using litigation consultants in various aspects of courtroom practice and procedure. The Court further reasoned that if plaintiff’s counsel had organized the mock trials themselves and done their own jury consulting research, the hourly rates they charged for these services would be reimbursed as part of the attorney’s fees award. Id. Therefore, the expenses were also reimbursable as attorney’s fees in the case.

Even under the Florida Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, deposition costs may be awardable when the deposition are not specifically used at trial if the depositions would serve a useful purpose. Winn Dixie Stores, Inc. v. Vote, 463 So.2d 459 (Fla. 2d DCA 1985). Where a deposition was not admitted at trial but was necessarily obtained for use in structuring questions of witnesses, the depositions were held compensable. Willey v. Roark, Inc., 616 So.2d 1140, 1142 (Fla. 4th DCA 1993) (citing various cases holding that depositions were subject to reimbursement in apparent contravention of the Florida Statewide Uniform Guidelines for the Taxation of Costs in Civil Actions where courts found these depositions to be “reasonably necessary”). The Willey court explained that “reasonably necessary” did not mean that the deposition had to be used at trial before the jury and that the trial court had a broad discretion to permit the taxation of deposition costs. Id.

Congress amended Title VII in the Civil Rights Act of 1991, Pub.L. 102-166, 105 Stat. 1072, in response, in part, to a prior decision that had held that expert fees were not recoverable as part of an attorneys fees award.192 Since the 1991 amendment, Title VII has specifically provided that the prevailing party be awarded expert fees as part of an attorney's fee award. 42 U.S.C. § 2000e-5(k).

192 Landgraf v. USI Film Prods., Inc., 511 U.S. 244, 251, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), citing West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991)West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991)).

8.39 Are you getting the most from your

Association Member Benefits International 25TH ANNIVERSARY Benefits? PublicationsPublications

Visit www.floridabar.org/memberbenefits

for1 THE FLORIDA a BARcomplete JOURNAL/JANUARY 2012 list of member benefits