Employment Law Trials: A Guide for Employer-Side Attorneys

Chapter 1, Introduction to Second Edition

1.01 Overview
1.02 Employment Litigation
1.03 Employment Cases Defined
1.04 The Organization of this Book
1.05 The Development of Employment Law
1.06 The Theories Presented
1.07 The Value of an Effectively Tried Case

Chapter 2, Developing a Theme for the Case
2.01 Introduction
2.02 The Fairness Concept: In the Eye of the Beholder
2.03 Themes in Discrimination Matters
2.04 Developing a Theme for a “Cause” Employment Case
[1] Standard for Cause Provided by Employment Agreement
[2] Enterprise Wire Standard for Cause
[3] Reasonable Employee Standard for Cause
[4] Burden of Proof
2.05 Themes for Other Employment Cases
[1] Fair Labor Standards Act Cases
[2] Harassment Cases
2.06 Developing a Credible Theme
2.07 The Corporate Defendant
2.08 The Lawyers as Client Representative
2.09 Conclusion

Chapter 3, Trial Preparation: Trial Notebook, Trial Brief & Pretrial Motions
3.01 Introduction
3.02 Trial Notebook
[1] Complaint and Answer
[2] Discovery Responses
[3] Fact Memo
[4] Legal Research
[5] Witnesses
[6] Other Documents
3.03 Trial Brief
[1] Statement of the Case Section
[2] Argument & Authorities Section
3.04 Pretrial Motions
[1] Motions to Sever & Motions to Bifurcate
[2] Motions in Limine
[a] Comments Allegedly Indicating Unlawful Intent
[b] The Employer’s Treatment of Other Employees
[c] Hearsay Objections to Evidence of the Company’s Basis for Its Decisions
[d] Evidence Related to the Administrative Process
[e] Prior Bad Acts of the Plaintiff
[f] Other Evidence Offered to Establish Unlawful Discrimination
[g] Damages
[h] Special Issues for Harassment Matters
3.05 Conclusion

Chapter 4, Voir Dire and Jury Selection
4.01 Introduction
4.02 Advancing the Theme of the Case in Voir Dire
[1] Addressing Substantive Issues
[2] At-Will Theme
[3] Definition of “Discrimination” Theme
[4] Theme of Compliance with Employer Policies
[5] Business Judgment Theme
4.03 Identifying Inherent Bias & Prejudice with Potential Jurors in Employment Matters
[1] An Example of a Biased Juror
[2] Specific Voir Dire Questions to Identify Jurors’ Personal Employment Experiences
[3] Necessary General Questions
4.04 Legal Restrictions on Voir Dire
[1] The Batson Prohibition Against Jury Strikes Based on Membership in Protected Groups
[2] Striking Panel Members
[3] Procedure for Challenges
[4] Rehabilitating Panel Members
4.05 Selecting Jurors for an Employment Case
[1] Conducting Voir Dire
[2] Juror Profiles for Employment Cases
4.06 Jury Selection Assistance
[1] Jury Consultants
[2] Other Jury Selection Tools
4.07 Conclusion

Chapter 5, Opening Statements
5.01 Introduction
5.02 The Importance of Opening Statements
5.03 Presentation of the Theme
[1] Opening
[2] Humanizing the Client
[3] Just the Facts
[4] Addressing the Opposing Counsel’s Points
[5] Addressing the Credibility of the Parties
5.04 Persuasion
[1] Storytelling
[2] Persuading Individual Jurors
[3] Do Not Overstate the Facts
[4] Effective Presentation of the Opening
[5] Testing the Opening
5.05 Developing Credibility
[1] The Dangers of Confrontational Attitudes
[2] Professionalism
5.06 Legal Limitations on Opening Statements
5.07 Conclusion

Chapter 6, Presentation of Evidence
6.01 Introduction
6.02 General Strategy for Presentation of Evidence
6.03 Documents
[1] Trial Exhibits
[2] Selecting Documents to Be Trial Exhibits
[3] Making Exhibits Useful to the Fact Finder
[4] Demonstrative Exhibits
6.04 Direct Examination
[1] Selecting Witnesses for Direct Examination
[2] Preparing the Witness
[3] Presenting the Witnesses on Direct Examination
[4] Redirect and Rehabilitation
6.05 Cross-Examination
[1] The Goal of Cross-Examination: Control the Witness
[2] The Ten Commandments of Cross-Examination
[3] Asking Appropriate Questions
[4] Impeaching the Witness
6.06 Conclusion

Chapter 7, Experts
7.01 Introduction
7.02 The Importance of Experts
7.03 The Daubert Standard
7.04 Topics of Expert Testimony
[1] Overview
[2] Class Action Issues
[a] Disparate Impact
[b] Pattern & Practice
[3] Damages
[a] Back Pay & Front Pay
[b] Bonus, Stock Options & Other Equity Compensation
[c] Mitigation Issues
[4] Emotional Distress
[5] Other Topics for Expert Testimony
[a] Social Science Experts
[b] Forensic Computer Experts
[c] Foreign Law Experts
[d] American Law Experts
7.05 Selecting an Expert
[1] Designating Experts on Topics the Same as or Different from Plaintiff
[2] Professional v. Nonprofessional Experts
[3] Designating an Expert as a “Consulting” Expert
[4] Background Check of the Expert
7.06 Direct Examination of Experts
[1] Overview
[2] Qualification of the Expert
[3] Presenting the Expert’s Opinion
7.07 Cross-Examination
[1] Introduction
[2] The Rules for Cross-examining Experts
[3] Topics for Cross-examination of Experts
[a] Expert’s Qualifications
[b] Expert’s Fee
[c] Expert’s Relationship with Opposing Counsel or Plaintiff
[d] Expert’s Contact with Opposing Counsel or Plaintiff
[e] Expert’s Methodology
7.08 Conclusion

Chapter 8, Remedies
8.01 Introduction
8.02 Actual Damages
[1] Backpay and other Lost Compensation
[2] Front Pay
[3] Attorneys’ Fees and Costs
8.03 Equitable Relief
8.04 Compensatory Damages
[1] The Legal Right to Recover for Emotional Distress
[2] Proof Issues Associated with Emotional Distress Claims
[3] Alternative Causes for Emotional Distress
[4] Expert Evidence
[5] Corroborating Evidence
8.05 Punitive Damages
[1] Standards for Awards of Punitive Damages
[2] Proof Related to Punitive Damages
[3] Liquidated Damages
8.06 Defenses to Damages Claims
[1] Mitigation
[2] After-Acquired Evidence
[3] Constitutional Defenses
8.07 Conclusion

Chapter 9, Trial Motions & The Jury Charge
9.01 Introduction
9.02 Trial Motions
[1] Overview
[2] Judgment as a Matter of Law
[3] Motion for New Trial
[4] Motion to Amend Pleadings
[5] Motion to Reopen the Record for Additional Evidence
[6] Motion for Attorneys’ Fees 
9.03 The Jury Charge
[1] The Proposed Charge
[2] Essential Elements of a Jury Charge
[a] Elements From the General Parts of the Charge
[b] Specific Instructions Essential to Employment Cases
[c] Jury Questions in Employment Cases
[3] The Charge Conference & Formal Objections
9.04 Conclusion

Chapter 10, Closing Arguments
10.01 Introduction
10.02 The Purpose of Closing Argument
10.03 Legal Restrictions on Closing Argument
[1] Overview
[2] Factual Evidence
[3] Personal Attacks or Positions
[4] Improper Appeals to the Jury
10.04 Crafting the Persuasive Closing Argument
[1] Argument Not Summary
[2] Common Issues to Address in Closing Argument
[a] The Theory of the Case
[b] General Issues Applicable to Almost All Employment Cases
[i] Overview
[ii] Burden of Proof
[iii] Preponderance of the Evidence
[iv] Credibility of Witnesses
[c] Argument on the Evidence in the Case
[d] The Jury Charge
[e] Damages
[f] Argument Related to the Opponent’s Case
[3] Practical Tips for Effective Argument
[a] Close Without Notes
[b] Prepare & Practice
[c] Overstating the Case
[d] Lead the Jury to Their Own Conclusion
[e] Use a Strong Beginning
[f] Use Analogies & Word Pictures
[g] Ask for What You Want
10.05 Conclusion

Chapter 11, Arbitrations, Bench Trials & Injunction Proceedings
11.01 Introduction
11.02 Arbitrations
[1] The Background of Arbitration of Employment Disputes
[2] Deciding on Arbitration & Selecting an Arbitrator
[a] Factors to Consider
[b] Arbitrator Selection
[3] Presenting an Effective Case in Arbitration
[a] Considerations Before the Arbitration Hearing
[b] Presentation of the Case at the Arbitration Hearing
[c] Post-Arbitration Brief
11.03 Bench Trials
[1] Questions From the Fact Finder
[2] Take Advantage of Pretrial Interaction With a Judge
[3] The Trial Brief
[4] Presenting an Effective Case to the Court in a Bench Trial
[a] Presentation of the Case
[b] Pretrial & Trial Motions
[c] Closing Argument
11.04 Injunction & Other Ancillary Proceedings
[1] Employment Claims Typically Associated with Injunctions & Ancillary Proceedings
[2] The Procedure Applicable to Injunction Proceedings
[3] Practical Considerations
11.05 Conclusion

Appendixies

Appendix A: Sample Trial Brief
Appendix B: Motion in Limine 
Appendix C: Voir Dire by Lawyer
Appendix D: Proposed Voir Dire by the Court
Appendix E: Juror Questionnaire for Santa Clara County
Appendix F: Opening Statement
Appendix G: Direct Examination
Appendix H: Cross Examination
Appendix I: Direct Testimony of Economic Expert
Appendix J: Cross Examination of Economic Expert
Appendix K: HR Director Testimony
Appendix L: Judgment as a Matter of Law
Appendix M: Defendant’s Proposed Jury Charge
Appendix N: Defense Closing Argument
Appendix O: Confidentiality and Protective Order