2017 NELA Convention Trial Advocacy Bundle

There has been an increasing trend of bringing both Equal Pay Act (EPA) collective actions and Title VII class actions in one case, and there have long been examples of such claims being combined in individual litigation. This panel addresses the pros and cons of bringing both claims simultaneously, and provide advice on how to maximize the benefits and minimize the risks from this combination. Specific topics include managing the administrative exhaustion process where one claim requires exhaustion and the other does not; strategic and logistical issues in handling opt in collective action and opt out Rule 23 classes; considerations related to comparators; how the defenses under the EPA and the disparate impact/business justification defenses relate to one another; the impact of adding EPA claims on the statistical analysis; how to prove these claims; and settlement issues.

Philip Mullenix, an attorney and frequent consultant to law enforcement, shares his strategies on witness interviewing, examination, and lie spotting. Since 1976, Mr. Mullenix has provided instruction to hundreds of attorneys, military, intelligence, law enforcement, and security personnel in the detection of deception, interviewing, and interrogation. Mr. Levin-Epstein is a NELA member and a seasoned trial lawyer with over 40 years of experience in criminal law. His criminal law practice has enhanced his ability to represent individuals effectively in their employment-related matters as there is significant overlap between the two fields and where clients face situations which have implications from both an employment and criminal perspective. This presentation includes many valuable tips and techniques for taking depositions and conducting direct and cross-examination at trial.

You’ve overcome the defense’s motion for summary judgment. How do you convince a jury what your client’s case is worth or that the employer’s conduct is so reprehensible that they should award punitive damages? Using trial strategies to assist the jury in placing value on your client’s emotional distress and economic losses is critical. Equally important are post-verdict strategies to assist the judge in evaluating whether to increase the initial verdict value by awarding damages for the additional tax liability to your client and/or for additional months of back pay resulting from the appellate process. Our panel of successful trial attorneys and a veteran jury consultant share their strategies utilized in real-life victories where they obtained seven-figure verdicts in employment discrimination cases for their clients.

Developments in a number of circuit courts may provide employee rights advocates effective mechanisms for presenting circumstantial evidence of discrimination at summary judgment in ways that avoid the restrictive confines of McDonnell Douglas. In Ortiz v. Werner Enters., Inc, No. 15-2574 (2016), the Seventh Circuit concluded that twenty-plus years of jurisprudence regarding “direct/indirect” evidence and the “convincing mosaic” standard had come to obscure, rather than clarify, the central questions at summary judgment, while other circuits (e.g. Ahmed v. Johnson, 752 F.3d 490 (1st Cir. 2014) and Holland v. Gee, 677 F.3d 1047, 1056 (11th Cir. 2012)) have recognized the “convincing mosaic” framework and begun to wrestle with its implications only more recently. In addition, the Eleventh Circuit has joined other courts in affirming that McDonnell Douglas does not apply at summary judgment when the plaintiff a lleges t hat unlawful discrimination was a “motivating factor” in an adverse employment action (Quigg v. Thomas County Sch. Dist., 814 F.3d 1227 (2016)). Our panel of summary judgment gurus review the state of the law in different circuits on these issues and discuss the pros and cons of using alternative methods of organizing circumstantial evidence to defeat summary judgment.