Evidence Issues and Jury Instructions in Employment Cases

Transcription

1 GeorgetownCLE: SEMINAR Your Authoritative Legal Resource from the Nation s Capital In Cooperation with ALI-ABA Evidence Issues and Jury Instructions in Employment Cases Thursday-Friday, February 9-10, 2006 Georgetown University Law Center

2 Speakers About Georgetown CLE Georgetown CLE has established a thirty-year tradition providing the legal community high quality programs. Our programs are developed with the profession s ever-changing needs in mind, while at the same time meeting the mandatory CLE requirements of various state bars. Located in the heart of the nation s capital, we feature the country s leading officials, judges and practitioners. Program Co-Chairs Connie N. Bertram Winston & Strawn LLP Robert B. Fitzpatrick Robert B. Fitzpatrick, PLLC Paul F. Mickey, Jr. Steptoe & Johnson LLP Faculty Hon. Janet Bond Arteron New Haven, CT A. Neal Barkus Hunton & Williams LLP James A. Batson Liddle & Robinson Hon. Catherine C. Blake Hon. James K. Bredar Michael Delikat Orrick, Herrington & Sutclifffe LLP Edward T. Ellis Montgomery, McCracken, Walker & Rhoads, LLP Philadelphia, PA Hon. Jacob P. Hart Philadelphia, PA Newark, NJ Adam T. Klein Outten & Golden LLP Hon. Benson E. Legg Chief Judge, U.S. District Judge Kathleen M. McKenna Proskauer Rose LLP Prof. Lynn McLain University of Baltimore School of Law Paul W. Mollica Meites, Mulder, Burger & Mollica Chicago, IL J. Frederick Motz Hon. Paul V. Niemeyer (invited) U.S. Court of Appeals for the Fourth Circuit Richmond, VA Woodley B. Osborne Mehri & Skalet, PLLC Hon. William D. Quarles Adele Rapport U.S. Equal Employment Opportunity Commission Detroit, MI Hon. Jilllyn K. Schulze Chief U.S. Magistrate Judge Greenbelt, MD Richard T. Seymour Law Offices of Richard T. Seymour, P.L.L.C. Linda Hitt Thatcher Thatcher Law Firm, LLC Greenbelt, MD Kenneth M. Willner Paul, Hastings, Janofsky & Walker LLP

3 Agenda 13.5 CLE credit hours (A 60 minute hour, including 1.0 hour of legal ethics) 16.0 CLE credit hours (A 50 minute hour, including 1.0 hour of legal ethics) Thursday, February 9 8:00 9:00 am Registration and Continental Breakfast 9:00 10:30 am Using the Federal Rules of Evidence to Effectively Present Your Claims and Defenses to the Jury Prof. Lynn McLain Proving preliminary matters Character evidence, Rules 412 & 415, and related matters The original writing rule, authentication and electronic evidence Opinion and expert testimony Hearsay and its exceptions Impeaching witnesses 10:30 10:45 am 10:45 11:45 am Using the Federal Rules of Evidence (continued) 11:45 am 12:00 pm 12:00 1:30 pm Lunch (on your own) 1:30-2:30 pm Evidence Issues in Harassment and Retaliation Cases Pl: Adele Rapport Def: Robert B. Fitzpatrick Judges: Hon. James K. Bredar Hon. Benson E. Legg Privileged status of investigation by outside counsel and of communication with litigation consultants Evidence Rule 412 disputes Evidentiary predicate for punitive damages and evidence of net worth Admissibility or exclusion of testimony regarding plaintiff s sexual banter in the workplace, sexual conduct outside the workplace and at prior jobs, and what plaintiff did or did not share with friends and other intimate relations about what was supposedly happening in the workplace The intersection of psychological testimony and emotional distress damages The admissibility of what the company said during investigations Admissibility of evidence beyond the scope of the original investigation 2:30-2:45 pm 2:45-3:00 pm 3:00-4:00 pm Evidence Issues in Statutory Discrimination Cases Pl: Paul W. Mollica Def: Michael Delikat Judges: Hon. Jacob P. Hart Hon. William D. Quarles Using evidence that the employer was unaware of certain information Me too and not me evidence Who is a comparator and who is similarly situated? Is it proper to put on evidence of the selectee s performance to demonstrate discrimination or non-discrimination? Plaintiff use of evidence of inconsistencies and gaps in documentation The scope of other complaints 4:00-4:15 pm 4:15-5:15 pm Legal Ethics The duty to preserve evidence rules of professional responsibility and cases Spoliation of evidence as a sanction Implications of proposed changes to the

4 federal rules of procedure relating to discovery of electronic evidence Representation/Retainer Agreements 5:15-5:30 pm 5:30 pm Adjournment for the Day Friday, February 10 8:00-8:30 am Continental Breakfast 8:30-9:20 am Electronic Evidence: The Problems, the Law and Available Solutions Discovery issues The new FRCP How to reduce the dramatic expenses Clawbacks Quickpeek Privacy issues Issues unique to employment litigation 9:20-10:10 am Electronic Evidence: Mock Motion Argument-Judges react Pl: James A. Batson Def: Kathleen M. McKenna Judges: Duties of counsel regarding preservation of evidence Duty of counsel to advise client regarding preservation of evidence Applicable Rules of Professional Responsibility Sanctions for failure to preserve evidence -Evidentiary sanctions -Disciplinary sanctions -FRCP 26(g) Proposed changes to FRCP 37 and their impact on preservation of evidence 10:10-10:30 am 10:30-10:45 am 10:45-11:45 am Evidence Issues in Collective and Class Actions Pl: Adam T. Klein Def: Connie N. Bertram Judges: Hon. J. Frederick Motz Hon. Catherine C. Blake Differences in evidence necessary at certification, liability and damages stages Statistical evidence and experts (offered by class and employer) Evidence concerning the existence of AAPs and the failure to meet goals Evidence concerning employer's pre-litigation statistical "self-evaluation" Anecdotal and "not me" evidence 11:45 am 12:00 pm Questions & Answers 12:00-12:15 pm Box Lunch Sponsored by Winston & Strawn LLP 12:30-1:15 pm Guest Speaker Hon. Paul V. Niemeyer (invited) 1:15-1:30 pm 1:30-2:30 pm Jury Instructions I: Harassment and Retaliation Claims Pl: Richard T. Seymour Def: Edward T. Ellis Judges: Hon. Janet Bond Arteron Defining the scope of protected activity The availability of a mixed motive instruction Defining retaliatory harassment Additional constructive discharge developments Constructive resignation/termination Defining religious harassment Proof of nexus temporal proximity 2:30-2:45 pm 2:45-3:00 pm 3:00-4:00 pm Jury Instructions II: Disability Claims Pl: Woodley B. Osborne Def: Kenneth M. Willner Judges: Hon. Jillyn K. Schulze Defining an ADA disability Defining an FMLA serious health condition Defining reasonable accommodation Defining major life activities is work a major life activity Defining a FMLA incapacitation The standard of proof to establish FMLA retaliation Defining a "regarded as" ADA claim 4:00-4:15 pm 4:15-5:15 pm Jury Instructions III: Race/Gender/Age Claims Pl: Linda Hitt Thatcher Def: A. Neal Barkus Judges: Mixed motive developments after Desert Palace The debate over the prima facie case and burden shifting instructions The mitigation instruction The "business judgment" instruction debate "Double whammy" (e.g. African-American female) instruction Burden of proof in a so-called reverse discrimination case Present value instructions Impact of affirmative action plans/preferences/hiring goals 5:15-5:30 pm 5:30 pm Adjournment

5 Program Details Registration Form Please Print or Type. Payment must accompany registration. Hotel Reservations Georgetown University Law Center CLE has preferred rates at the Hyatt Regency Washington on Capitol Hill, which is approximately 2 blocks away. When making reservations, please refer to Corporate Number to receive the Georgetown University Law Center rate. We recommend making reservations at least 30 days prior to the conference. This rate is based on hotel availability. Phone: (800) or (202) Online: Hyatt Regency Washington on Capitol Hill 400 New Jersey Avenue, NW Disclaimer Speakers are subject to change. Special Needs or Dietary Restrictions Call (202) Scholarships Georgetown CLE makes every effort possible to provide equal educational opportunities to all. We provide a limited number of scholarships on a case-by-case basis. Apply online at or submit written request no later than 5:00 pm on Monday, January 30, 2006 to: Scholarship Committee Georgetown CLE 600 New Jersey Avenue, NW or fax to (202) Cancellations/Rain Checks/Substitutions Please fax your cancellation notice to (202) by 5:00 pm on Monday, February 6, 2006 for a refund (less $75 administrative fee). Rain checks for a future program will be granted for cancellations received after February 6 and prior to the start of the program. Substitutions are accepted at anytime prior o the program. Money-Back Guarantee We are confident that you will leave this conference with more than enough ideas and insights to make your investment pay off. However, if you feel you have not received your money s worth by the end of the program, simply contact a member of our registration team at the conference or call (202) and we will process a 100% refund for your registration fee! CLE Credit Virtually all ALI-ABA courses of study are full accredited in mandatory continuing legal education (MCLE) jurisdictions (including Virginia, Pennsylvania, Delaware, and New York) for varying numbers of credit hours. To obtain specific information on CLE, CPE or other professional accreditation for this course, please write to: Mandatory CLE Credit, ALI-ABA, 4025 Chestnut Street, Philadelphia, PA Evidence Issues and Jury Instructions in Employment Cases $995 Regular $945 Georgetown Law Alumnus class of $550 Paralegal/Legal Assistant Name: Mr. Ms. address: (please print clearly) Firm/Organization: Address: City: State: Zip: Phone: CLE credit? Yes No What state? Your source code is: Fax: Help us expedite your registration. Enter the characters appearing on the top of the mailing label. Please enter this code even if the label is addressed to someone else. Thank you! Feel free to copy this form and pass it along to your associates. For multiple registration discounts contact Georgetown CLE at (202) Organizations sending three or more registrants will receive $100 discount on each registration. I cannot attend, but send me: Course Materials Only $179 Audio Cassettes & Course Materials $499 Audio CD-ROM (audio & text) $499 For CD-ROM and course material, individuals or firms with a DC address should add 5.75% sales tax, VA 5.0%, MD 5.0%, and PA 6.0% (or 7.0% if from Philadelphia or Allegheny County.) Five Ways To Register: 1. PHONE to (credit card registrations only) 2. MAIL with check payable to Georgetown CLE to address below. Check enclosed: # $ or purchase order may be attached to this form # 3. FAX to (credit card/po registrations only) VISA MC AMEX Card #: Expiration Date: Signature: 4. your registration information to: cle@law.georgetown.edu 5. ONLINE Georgetown University Law Center, Continuing Legal Education 600 New Jersey Avenue, NW,

6 Georgetown University Law Center Continuing Legal Education 600 New Jersey Avenue, NW Non-Profit U.S. Postage PAID Wash., D.C. No Attention Mail Room: If the individual whose name is on the label is no longer employed, please forward this material to the successor. GeorgetownCLE: SEMINAR In Cooperation with ALI-ABA Evidence Issues and Jury Instructions in Employment Cases Thursday-Friday, February 9-10, 2006 Georgetown University Law Center Why You Should Attend Balanced Perspective During this two-day program, you will be able to examine vital evidence and jury instruction issues that arise in employment cases. You will obtain a practical, experience-based plan for addressing vexing problems confronting employment lawyers before and during trial. All issues will be examined in a balanced way with judges & plaintiff and defense lawyers. Broad Coverage of Jury Instructions It is often said that a lawyer should start work on an opening and a closing statement the very day a case comes through the door. The same applies to jury instructions. Finding potential model jury instructions acceptable for a particular case can be a difficult proposition. Some courts have model instructions, but most do not. And for those with model instructions, some may not be up to date. At this program, you will receive pragmatic tips on crafting jury instructions for particular kinds of claims: race, gender, age, sexual harassment, retaliation and disability. Special Evidence Tutorial A special benefit for all attendees is a tutorial on using the Federal Rules of Evidence, featuring a renowned magistrate judge/ teacher and a law school professor. No need to worry, this is not a lecture where you merely review the rules. Rather it is a guide on using the rules to admit or exclude material, to get it to or keep it from the jury s eyes and ears. E-Discovery Focus As e-discovery projects continue to grow by the megabyte, it becomes harder to obtain the crucial data that will make or break your case. It is important not just because of admissibility or exclusion. Electronic files can tell an adversary far more than the party turning them over knows they contain or wants revealed. At this program, you will hear judges and practitioners analyze the role of e-discovery in employment litigation.