Litigating the Sexual Harassment CaseAmerican Bar Association, 2000 - 561 páginas Whether representing the plaintiff or defendant, this book provides the attorney with valuable tips on pretrial and trial tactics. |
Contenido
Overview of the Law of Sexual Harassment and Related Claims | 1 |
II Quid Pro Quo and Hostile Work Environment | 3 |
A The Elements of a HostileWorkEnvironment Claim | 4 |
B SameSex Sexual Harassment | 8 |
C Constructive Discharge | 10 |
III Retaliation | 11 |
B The Opposition Clause | 12 |
B Ellerth and Faragher | 13 |
B The Process | 263 |
D After the Focus Group or Mock Trial | 269 |
FOCUS GROUP SEXUAL HARASSMENT CASE PARTICIPANT PROFILE | 273 |
CONFIDENTIALITY AGREEMENT | 278 |
WELCOME SCRIPT | 279 |
QUESTIONNAIRE I AFTER WITNESS TESTIMONY | 281 |
FOCUS GROUP JUROR OBSERVATION FORM DURING DELIBERATIONS | 283 |
Voir Dire and Plaintiffs Opening Statement | 285 |
C Individual Liability of Agents | 22 |
D Rights of Alleged Harassers | 23 |
V Procedural and Evidentiary Issues | 24 |
D Defenses | 25 |
VI State and Local Antidiscrimination Laws | 26 |
VII Exhaustion of Administrative Remedies | 27 |
Insurance Coverage of Employee Claims Against Employers | 35 |
III Coverage | 36 |
B What Is Insured? | 37 |
C Who Controls the Defense? | 40 |
A PreClaim Products and Services | 41 |
Sexual Harassment Policies and Investigations | 45 |
II Investigating Allegations of Sexual Harassment | 49 |
A Selecting the Investigative Team | 50 |
B Identifying Gathering and Preserving Evidence | 52 |
D Documentation and Decision Making | 57 |
E Communicating Investigation Results | 58 |
The Intake Process Investigation and Filing of a Sexual Harassment Claim | 69 |
A Preliminary Screening | 70 |
B The Initial Interview | 71 |
II PreLitigation Investigation and Evaluation | 74 |
B Witness Interviews | 78 |
D Evaluation of Potential Legal Claims | 79 |
III Filing the Sexual Harassment Claim | 81 |
B Drafting the Complaint | 82 |
Responding to a Charge or ComplaintDefense Perspective | 87 |
II Responding to a Charge of Discrimination Filed with a Government Agency | 88 |
III Filing the Complaint in Federal Court | 90 |
B The Parties | 91 |
IV Defenses to Sexual Harassment Causes of Action | 93 |
C Failure to Exhaust Arbitration | 94 |
H Preemption of Pendent Claims | 95 |
Administrative Agencies and Alternative Dispute Resolution | 99 |
II Alternative Dispute Resolution | 100 |
B Mandatory ADR as an Exclusive Forum for Resolving Disputes | 102 |
C Private Voluntary Agreements to Resolve Sexual Harassment Claims | 103 |
III Mediation and Administrative Discrimination Agencies | 105 |
B When to Utilize Mediation | 108 |
C Factors to Consider Before Mediation | 110 |
E The Mediation Session | 111 |
IV Practical Tips When Mediation Fails | 113 |
A Know the Agency | 114 |
E Explore Settlement and Private ADR | 115 |
Defending the Alleged Harasser | 117 |
II Ethical Issues in Representing the Alleged Harasser | 118 |
B The Joint Representation Agreement | 119 |
C Settlement Discussions | 121 |
D InHouse Counsel | 122 |
IV Obtaining Early Judgment for the Individual Defendant | 124 |
V Protecting the Alleged Harasser from Discovery Abuses | 125 |
A Rule 415 Evidence | 126 |
VI Presenting a Unified Front at Trial | 129 |
Joint Defense and Work Product Sharing Agreement | 134 |
Memorandum of Representation | 136 |
Multiplaintiff Litigation and Class ActionsPlaintiffs Perspective | 139 |
II Procedural Requirements for All Class Action Litigation | 142 |
B Requirements of Rule 23b | 145 |
D Special Considerations | 146 |
III Multiplaintiff but Not Class Actions | 147 |
V Proving the Multiplaintiff Sexual Harassment Case | 148 |
B The Mitsubishi Case | 150 |
C Litigating Multiplaintiff Claims After Jenson and Mitsubishi | 152 |
VI Settling Class ActionMultiplaintiff Sexual Harassment Cases | 153 |
Multiplaintiff Litigation and Class ActionsA Defense Perspective | 158 |
The Class Action Requirements | 160 |
Numerosity Commonality Typicality and Adequacy | 161 |
B The Requirements of Rule 23b | 164 |
III Applying Class Action Requirements in Sexual Harassment Cases | 166 |
The Rule 23a Requirements | 172 |
D Challenging Certification Under Rule 23b | 173 |
Discovery Summary Judgment Communication with Class Members | 174 |
B Defense Communications with Named Representatives and Putative Class Members May Be Limited to Matters Outside the Pending Litigation | 177 |
The Severance Challenge | 178 |
Discovery and Deposing the PlaintiffDefense Perspective | 191 |
II Preparation for the Plaintiffs Deposition | 192 |
B Use Interrogatories to Obtain Hard Information | 197 |
C Interview Critical Fact Witnesses | 198 |
B Organization Technique Pace Timing and Approach | 201 |
IV Preparation of Defense Witnesses for Their Depositions | 204 |
V Depositions of Plaintiffs Doctors and Other Experts | 205 |
Discovery and Deposing the Alleged Harasser and Employers WitnessesPlaintiffs Perspective | 207 |
B Pure DiscoveryWho What Where When Why and How | 208 |
C Rule 26 Disclosures | 209 |
E Settlement Leverage | 211 |
B ThirdParty Statements and Depositions | 215 |
C Depositions of the DefendantEmployer | 216 |
III Punitive Damages and Attorneys Fees | 217 |
B Attorneys Fees | 218 |
Summary Judgment Defense Perspective | 220 |
I Defenses | 221 |
C Defining the Sexual Harassment Cause of Action | 223 |
II Using Discovery to Set Up the Summary judgment | 224 |
III Preparing Affidavits | 226 |
IV The Summary judgment Motion and Package | 228 |
Know Thy Local Rules | 229 |
Keep It Plain and Short | 231 |
Winning with the Reply | 233 |
Responding to Summary JudgmentPlaintiffs Perspective | 237 |
Highlighting Factual Disputes | 238 |
III Drafting the Response to Defendants Summary Judgment Motion | 240 |
B Legal Argument | 241 |
IV Filing a CrossMotion for Summary Judgment | 248 |
Jury ScienceThe Use of Focus Groups and Mock Trials in Trial Preparation | 251 |
I Jury Science | 253 |
A Personality Typing | 254 |
B Social Cognition | 256 |
II Gathering the Data | 257 |
A Focus Groups | 258 |
B Mock Trials | 260 |
III Selection of Focus Group Participants | 261 |
A Preparing for the Focus Group | 262 |
A Motion for Improved or Altered Voir Dire Conditions | 286 |
Practice Strategies and Tips | 287 |
B Juror Questioning | 289 |
III Rating Potential Jurors | 290 |
PLAINTIFFS OPENING STATEMENT | 291 |
III Procedure | 292 |
Damages | 293 |
VI Strategy | 294 |
Voir Dire and Defense Opening Statement | 300 |
I Voir Dire | 301 |
C Jury Questionnaire | 304 |
D Subjects of Voir Dire Questions | 305 |
E Communicate the Theory of the Case | 306 |
F Conducting Voir Dire | 308 |
II Defense Opening Statement | 309 |
Juror Chart | 313 |
Juror Questionnaire | 314 |
WRITTEN QUESTIONNAIRE | 316 |
Evidentiary Issues in Sexual Harassment Litigation | 322 |
I The Parties PastsWhat Are the Permissible Evidentiary Parameters? | 323 |
B Motions in Limine Regarding Character or Bad Act Evidence | 324 |
II Was the Conduct Welcomed? The Admissibility of Plaintiffs Past Sexual Conduct | 325 |
An Attempt to Shield the Admissibility of Plaintiffs Past Sexual Conduct | 326 |
B Cases Involving the Admissibility of Plaintiffs Sexual Conduct | 329 |
III Has He Ever Done It Before? The Admissibility of the Accuseds Past Sexual Conduct and Prior Complaints | 332 |
B Common Objections to the Admissibility of the Accuseds Past Sexual Conduct and Prior Complaints | 334 |
C Cases Admitting Evidence of Prior Complaints and the Accuseds Past Sexual Conduct | 335 |
B SelfCritical Analysis Doctrine | 338 |
C Use of Experts Regarding Sufficiency of Employers Harassment Policy | 339 |
CrossExamining the Plaintiff in a Sexual Harassment Case | 347 |
I Classic Impeachment | 348 |
A Methods of Classic Impeachment | 349 |
B Examination of the Plaintiffs Other Agendas or Motives for Bringing False or Exaggerated Charges | 350 |
C Plaintiffs Role in the Alleged Harassment | 351 |
CrossExamination of the Alleged Sexual Harasser and Other Defense Witnesses | 354 |
III How Important a Witness Is the Alleged Harasser? | 355 |
IV Isolating the Harasser | 356 |
V How Not to Start a CrossExamination | 358 |
VII Definitional Questions | 362 |
VIII The Importance of Reprisal | 365 |
IX Planting the Seed and Harvesting It | 367 |
A Practical View of Using ExpertsPlaintiffs Perspective | 370 |
II Rule 35a Examinations | 371 |
B The Treating PsychiatristPsychologist | 372 |
D The Statistical Expert | 373 |
F Nontreating Experts | 374 |
V The Care and Feeding of the Expert | 376 |
VII What to Avoid in Selecting an Expert | 377 |
Using Psychiatric and Psychological Experts at TrialDefense Perspective | 380 |
I Understanding the Differences Between Psychologists and Psychiatrists | 381 |
II Understanding the Differences Between Clinical and Forensic Evaluations | 382 |
B Forensic Evaluation | 383 |
C Ethical Issues When the Plaintiffs Treating Psychologist or Psychiatrist Testifies at Trial | 384 |
III The Framework Used by Clinicians and Forensic Evaluators | 385 |
A Multiaxial Assessment | 386 |
IV The Legal Framework for Admitting and Excluding PsychiatricPsychological Expert Testimony | 389 |
B Daubert v Merrell Dow Pharmaceuticals | 390 |
C Kumho Tire Co Ltd v Carmichael | 391 |
V Establishing the Groundwork for a Challenge to the Plaintiffs PsychiatricPsychological Expert | 394 |
B Methodology | 395 |
D Experts Knowledge of Facts About the Plaintiff | 396 |
F Deposition of the Plaintiffs Expert Witness | 397 |
VII Retaining a PsychiatricPsychological Expert for the Defense | 398 |
B Selecting an Expert | 400 |
C Providing Defendants Expert with All the Necessary Information | 401 |
VIII Conclusion | 403 |
Closing Argument and Jury InstructionsPlaintiffs Perspective | 409 |
II Closing Argument | 421 |
Closing Argument and Jury InstructionsDefense Perspective | 428 |
II How to Present an Effective Closing Argument | 429 |
D Acknowledge Weaknesses | 430 |
I Refer Back to the Opening | 431 |
N Refer to Jury Instructions and Verdict Forms | 432 |
Q Use an Authentic Style of Delivery | 433 |
V Special Considerations in Sexual Harassment Cases | 436 |
VI Jury Instructions | 437 |
ABA Model Jury Instructions | 439 |
Defendants Jury Instructions | 442 |
Damages Issues in Sexual Harassment Cases Plaintiffs Perspective | 446 |
A Expert Testimony on Psychological Harm Is Admissible and Can Be Important for Severely Harmed Plaintiffs | 447 |
B Expert Testimony Invites Rule 35 Examinations | 448 |
C Nonexpert Testimony Can Establish Compensatory Damages | 449 |
II Selected Issues Affecting Back and Front Pay Damages | 450 |
B Offsets to Front Pay Awards | 453 |
C Improper Use of Evidence of Collateral Source Payments | 455 |
E Adjusting Damages Awards to Compensate for Tax Consequences | 456 |
III Punitive Damages in Sexual Harassment Cases | 457 |
A General Standard and Preserving the Right to Recovery | 458 |
Mitigation of Damages in Sexual Harassment Cases | 467 |
A The Types of Damages to Which Mitigation Applies | 468 |
B The Types of Damages to Which Mitigation Does Not Apply | 469 |
A Amounts Paid by the Defendant to the Plaintiff | 470 |
C Interim Earnings | 471 |
D Amounts the Plaintiff Should Have Earned but for Failure to Mitigate Damages | 473 |
E Amounts That Would Have Been Deducted from the Plaintiffs Pay If No Violation Had Occurred | 479 |
Interrogatories to Plaintiff | 489 |
Requests to Produce to Plaintiff | 492 |
Jury Instruction | 494 |
Attorneys Fees in Sexual Harassment Cases | 495 |
II Need to Begin Planning for Fee Issue from Beginning of Case | 496 |
III Documentation | 497 |
IV Who Is a Prevailing Party? | 498 |
V Entitlement to Fees Where the Damages Are Nominal | 499 |
A Adjustment to Fee Award for Limited Success | 500 |
B Adjustment to Fee Award Where Some Claims Are Not Compensable | 502 |
VIII Offers of Judgment | 503 |
IX Other Issues | 504 |
TABLE OF CASES | 509 |
544 | |
Términos y frases comunes
11th Cir 2d Cir 7th Cir admissible affidavit affirmative defense agency alleged harasser attorneys award back pay behavior Burlington Burlington Industries certification chapter charge Circuit class action class members closing argument compensatory complaint conduct Corp coworkers decision defendant's defense counsel denied determine discovery discrimination district court documents EEOC Ellerth emotional distress employer evaluation Eveleth Taconite Co evidence expert witness facts Faragher Federal Rules fees filed focus group front pay hostile work environment individual interview investigation issues Jenson jurors jury instructions lawsuit liability litigation mediation ment mental Meritor Meritor Savings Bank Mitsubishi motion for summary multiplaintiff N.D. Ill party pattern or practice person plaintiff's counsel plaintiff's lawyer potential prior procedures prospective client punitive damages questions reasonable relevant settlement sexual harassment claims summary judgment supervisor Supp Supreme Court testimony tion Title VII trial voir dire workplace