This document provides guidance on successfully litigating employment discrimination claims. It discusses key aspects of voir dire, including identifying jurors motivated to accept the plaintiff's theory of the case. It also addresses challenges for cause and peremptory challenges during jury selection. The document emphasizes that employment cases focus on "motivation" and discusses developing a compelling case theme, direct and cross examination, and closing arguments centered around motivation. Overall, the document stresses tailoring all elements of the case around showing the motivations of both the plaintiff and defendant.
This document discusses trial tactics and techniques based on the advice of experienced litigators. It recommends gaining experience through taking on as many trials as possible in one's early career, even if they are minor cases. While advocacy skills can be learned, experience trying many cases, preferably dozens per year, is the best teacher. Different advocates have different styles as well, so one should not slavishly copy others but develop their own approach. Overall, industry, hard work, and experience are more important than innate talent for most advocates to achieve success.
This document provides an overview of trial procedures and strategies for a negligence case in New York state courts. It begins with a summary of the pretrial conference process, where the parties and judge work to simplify issues, obtain admissions, consider amendments and evidence limitations. The document emphasizes the importance of thorough preparation, including factual investigation and witness preparation. It also stresses developing a clear theory of the case and themes to present the facts in the most favorable light. Finally, it discusses strategies for winning the pretrial conference, including asserting control of discussions, emphasizing case strengths while acknowledging weaknesses, and knowing settlement limits.
Ethics And The Trial Consultant And Expert WitnessCTIN
The document discusses the roles and responsibilities of trial consultants and expert witnesses. A trial consultant advises the attorney privately and their name and reports are confidential, while an expert witness prepares to testify in court and their name, CV, and reports must be disclosed. The document provides guidance on properly distinguishing between the roles and obligations of a trial consultant versus an expert witness.
Hard-bargaining is a negotiation technique where one party continually makes more extreme demands to force their opponent to concede. It relies on instilling fear in the other party that the initial offers will get worse if they do not agree. While it can work by pushing the other side to their breaking point, it risks frustrating them and coercing them into accepting terms they may not otherwise. Countermeasures include calling out the tactic, focusing on reciprocal exchanges, and having other options if no deal is reached.
C24 Fraud In The Workplace 3 Mock Trials)[1]Pw Carey
The document summarizes key aspects of Eli Lilly's audit committee charter and compliance program for monitoring sales and marketing activities. It notes that Lilly conducts risk-based monitoring and auditing of sales and marketing functions. However, a prosecution witness alleges that Lilly salespeople used tactics like planted questions at physician events to promote off-label uses of the drug Zyprexa, despite risks of weight gain.
This document provides litigation tips and strategies for attorneys. It discusses the importance of having a clear end goal and theme in mind from the start of a case. It offers tips for developing claims, using Rule 202 depositions to investigate potential claims, and document management strategies. The document also discusses case preparation, developing an effective theme and theory, avoiding distractions, crafting an impactful opening and closing argument, and using various presentation tools and exhibits to engage the jury throughout trial.
The document discusses theories of modern racism and discrimination, and implications for testing around these issues. It describes the aversive racism model, which suggests prejudiced responses can occur in subtle, circumstantial ways rather than only consciously. It advocates for second generation testing that is theory-driven, capturing complexity and insights into behavioral processes. Testing should reflect discrimination holistically, through methods like examining daily transactions or career path divergences. Combining testing data with other organizational data can illuminate workplace culture.
Anna is interested in social issues related to disabilities, including discrimination, the benefits system, and abuse in care homes. She has personal and family experience with disabilities. Her idea is to develop a campaign to change young people's attitudes towards disabilities by stopping bullying, encouraging inclusion, and providing education about different types of disabilities.
This document discusses trial tactics and techniques based on the advice of experienced litigators. It recommends gaining experience through taking on as many trials as possible in one's early career, even if they are minor cases. While advocacy skills can be learned, experience trying many cases, preferably dozens per year, is the best teacher. Different advocates have different styles as well, so one should not slavishly copy others but develop their own approach. Overall, industry, hard work, and experience are more important than innate talent for most advocates to achieve success.
This document provides an overview of trial procedures and strategies for a negligence case in New York state courts. It begins with a summary of the pretrial conference process, where the parties and judge work to simplify issues, obtain admissions, consider amendments and evidence limitations. The document emphasizes the importance of thorough preparation, including factual investigation and witness preparation. It also stresses developing a clear theory of the case and themes to present the facts in the most favorable light. Finally, it discusses strategies for winning the pretrial conference, including asserting control of discussions, emphasizing case strengths while acknowledging weaknesses, and knowing settlement limits.
Ethics And The Trial Consultant And Expert WitnessCTIN
The document discusses the roles and responsibilities of trial consultants and expert witnesses. A trial consultant advises the attorney privately and their name and reports are confidential, while an expert witness prepares to testify in court and their name, CV, and reports must be disclosed. The document provides guidance on properly distinguishing between the roles and obligations of a trial consultant versus an expert witness.
Hard-bargaining is a negotiation technique where one party continually makes more extreme demands to force their opponent to concede. It relies on instilling fear in the other party that the initial offers will get worse if they do not agree. While it can work by pushing the other side to their breaking point, it risks frustrating them and coercing them into accepting terms they may not otherwise. Countermeasures include calling out the tactic, focusing on reciprocal exchanges, and having other options if no deal is reached.
C24 Fraud In The Workplace 3 Mock Trials)[1]Pw Carey
The document summarizes key aspects of Eli Lilly's audit committee charter and compliance program for monitoring sales and marketing activities. It notes that Lilly conducts risk-based monitoring and auditing of sales and marketing functions. However, a prosecution witness alleges that Lilly salespeople used tactics like planted questions at physician events to promote off-label uses of the drug Zyprexa, despite risks of weight gain.
This document provides litigation tips and strategies for attorneys. It discusses the importance of having a clear end goal and theme in mind from the start of a case. It offers tips for developing claims, using Rule 202 depositions to investigate potential claims, and document management strategies. The document also discusses case preparation, developing an effective theme and theory, avoiding distractions, crafting an impactful opening and closing argument, and using various presentation tools and exhibits to engage the jury throughout trial.
The document discusses theories of modern racism and discrimination, and implications for testing around these issues. It describes the aversive racism model, which suggests prejudiced responses can occur in subtle, circumstantial ways rather than only consciously. It advocates for second generation testing that is theory-driven, capturing complexity and insights into behavioral processes. Testing should reflect discrimination holistically, through methods like examining daily transactions or career path divergences. Combining testing data with other organizational data can illuminate workplace culture.
Anna is interested in social issues related to disabilities, including discrimination, the benefits system, and abuse in care homes. She has personal and family experience with disabilities. Her idea is to develop a campaign to change young people's attitudes towards disabilities by stopping bullying, encouraging inclusion, and providing education about different types of disabilities.
Lawyers often tell their clients that while they must prepare as if every case will go to trial, more than 90% of cases are resolved before trial. If a settlement is not reached, the resolution typically comes through the court ruling on a dispositive motion. This episode begins with a look at motions to dismiss, with focus on the still-developing Twombly-Iqbal standard, and how that standard is put into practice. We then discuss summary judgment motions. That discussion includes everything from making a summary judgment record to brief writing, to making a cross-motion for summary judgment. This webinar shines a light on what happens to the great percentage of cases that don’t make it to trial.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- 101 PART I 2022
See more at https://www.financialpoise.com/webinars/
Introduction to persuasion and theory of the casekdouat
This document provides guidance on developing an effective legal theory of the case. It discusses evaluating the relevant facts and law, confronting weaknesses, and crafting a persuasive narrative that explains why the client should prevail. The legal theory should have a factual and legal framework and emphasize facts favoring the client. An effective theory is tailored to the audience and tells a story using ethos, pathos and logos to convince the reader.
The document discusses four primary jurisdictional issues affecting the insurer-insured relationship:
1) Venue, choice of law, and mandatory arbitration clauses that can modify parties' rights and obligations under an insurance policy.
2) How "four corners" vs. "all available facts" jurisdictions approach defense rights, obligations, and investigations.
3) How jurisdictions approach the legal concept of "breach" of the duty to defend and its ramifications.
4) How jurisdictions evaluate available damage rights and remedies.
The panel will explore these issues through moderator Gary Gassman and presentations from industry professionals.
An examination under oath (EUO) is a formal proceeding where an insured is questioned under oath by an insurance company's representative about the details of an insurance claim. The purpose is to allow the insurance company to obtain truthful information needed to evaluate the claim. During an EUO, the insured is questioned orally while under oath and their responses are recorded by a court reporter. An insured's failure to fully cooperate with an EUO request can result in the denial of their insurance claim. The EUO allows insurance companies to investigate fraud, clarify insurable interests and damages, and determine if any policy defenses apply.
In the United States, a defendant has an absolute right to appeal a guilty verdict. In addition, you may also be entitled to appeal the sentence you received. Learn more about appealing a criminal conviction in California in this presentation.
The court does not allow the mandatory arbitration clause to be used because it prevents the plaintiffs from proceeding with a class action suit. While arbitration clauses are generally valid, they cannot be enforced if they prohibit class actions. The document also provides definitions and explanations of key legal concepts related to dispute resolution, including mandatory arbitration clauses, mediation vs. arbitration, subject matter jurisdiction, personal jurisdiction, venue, state and federal courts, pleadings, discovery process, and trials.
This document provides guidelines and considerations for handling fraud and RICO claims. It discusses evaluating the viability of fraud claims, common types of fraud, investigating the assets and characteristics of alleged fraudsters, challenges in investigating complex fraud schemes, and considerations for drafting complaints. It emphasizes the need to clearly articulate the specific actions of each defendant and provide factual support for allegations due to the high pleading standards required in fraud cases.
Effective Legal Writing for Your Client and Court AudiencesRichik Sarkar
This CLE focused on making direct arguments in all briefs to ensure critical messages are effectively conveyed and that they answer judges’ primary questions about why they should do what a litigant asks and how they have that authority. Attendees learned how to ensure that their briefs convey not only the necessary legal argument but also the client’s perspective on issues.
San Francisco Isaca 2010 Fall Security Conference C24 Fraud In The Workplac...Pw Carey
This document discusses fraud in the workplace and provides information about three mock trials that could be used to train auditors and whistleblowers. It includes details about Cressey's Fraud Triad, common mistakes whistleblowers make, and the steps involved in a trial. The document is divided into three parts that describe mock trials involving the companies NetApps, Eli Lilly, and Pfizer regarding allegations of fraud, off-label marketing, and non-compliance. Each case outlines the allegations against the companies, the companies' defenses, and how the cases were ultimately resolved through large fines and penalties.
C24 Fraud In The Workplace (3 Mock Trials)Pw Carey
The document discusses fraud in the workplace and provides information about fraud trials and whistleblowers. It discusses Cressey's fraud triad of perceived unshareable need, opportunity, and rationalization. It provides steps in a trial process and discusses mistakes whistleblowers commonly make. The rest of the document appears to be mock trial materials, including opening statements, witness testimony, and details about a $128 million settlement in a case between the GSA and NetApp regarding undisclosed discounts.
San Francisco Isaca 2010 Fall Security Conference C24 Fraud In The Workplac...Pw Carey
1) The document discusses Cressey's Fraud Triad which outlines the three factors that commonly lead to fraud: perceived unshareable financial need, perceived opportunity, and rationalization.
2) It provides an overview of common mistakes made by whistleblowers and steps that should be taken when exposing wrongdoing.
3) The document outlines the typical steps involved in a mock trial, including opening statements, witness questioning, closing arguments, and the jury deliberating to reach a verdict.
This document discusses legal malpractice and how to prevent it. It defines legal malpractice as alleging that a lawyer negligently performed legal services, with examples like missing filing deadlines or failing to advise a client properly. To prevent malpractice, clients should communicate clearly with their lawyer, ask questions, and stay involved. Comments discuss how far lawyer immunity extends - there must be proof of mishandling, not just differences of opinion on case value. Questions address barrister immunity and whether a client can sue their lawyer after settling a case.
This document outlines the typical stages of a car accident lawsuit:
1) The first step is determining if you have a valid claim and filing a complaint within the 2-year statute of limitations.
2) The defendant will respond by admitting fault, denying allegations, or filing counterclaims. Preliminary motions may also be filed.
3) Discovery and investigation of evidence takes place through examining documents and witness depositions.
4) Settlement negotiations often occur through mediation or if evidence strongly supports the claim. If not resolved, the case proceeds to trial.
ADR & Settlement (Series: Newbie Litigator School 101 - Part 1)Financial Poise
Many cases are litigated outside of the court system through the use of alternative dispute resolution methods such as arbitration, and the vast majority of cases settle before they reach trial, either as a result of the parties’ efforts or with the help of a mediator. This webinar covers the basics of arbitration and mediation, presenting an effective case to a neutral third party, and negotiating and documenting a successful settlement, either directly or with a mediator’s assistance.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/adr-settlement-2021/
CASE INFORMATIONFind a court case where the company indicated t.docxcowinhelen
CASE INFORMATION:
Find a court case where the company indicated they were surprised the employee charged was a fraudster (use the *KU library (Westlaw) to find the court case).
ANALYSIS REQUIREMENTS:
Based on your readings, literature, and/or the Fraud Examiners Manual analyze the case and include the following in your discussion:
What type of fraud schemes took place in this case?
Analyze the internal controls of this company for "red flags".
Identity why you think the company did not suspect this person was a fraudster and what policies would you put in place for this company to stop this fraud in the future?
WRITING REQUIREMENTS:
· 3-5 pages (not including title page, abstract, or reference page)
· Proper APA format
· Minimum of 3 scholarly sources (not including your textbook)
GRADING REQUIREMENTS:
Click on link to view grading requirements
AUGHT IN THE CROSSFIRE: THE (SUPPOSEDLY) INNOCENT ATTORNEYS WHO REPRESENT ACCUSED FRAUDSTERS
Editor's Note:This article is the second in a series calling for a more aggressive response to bankruptcy and other fraud. The first in the series was initially published in the May 2009 issue, entitled “A Call to Arms: A Bankruptcy Fraud Superfund.”
In law school, we were taught that when representing a person accused of committing a crime, we're never to ask, “did you do it?” From “innocent until proven guilty” to “representation for all,” the axiom was not to know whether the client “did it,” but instead to protect the rights of the accused, even if they did do it. While this ideology is arguably consistent with the will of our forefathers, recall that the context is criminal defense. What's more, the ideology is not without obvious limits in its application, criminally or civilly. Based on my personal experience, many civil lawyers honor the principle of “don't ask, don't tell” to an extreme--and in so doing, have exceeded the limits and crossed the boundary line of ethical conduct.
Before digging too deep into the ethics, though, let's consider a particular criminal defense attorney. The case was an involuntary bankruptcy under §303, and my creditor client successfully obtained the appointment of a gap trustee, more elusive than The Loch Ness Monster herself. The gap trustee and my client then secured an ex parte order for an unannounced inspection of the target's offices. After forcing the target and his staff out the door for a spell, the target hurriedly brought in both bankruptcy and criminal defense counsel. At the conclusion of the hearing that resulted in the denial of a motion to reconsider the judge's order to allow the inspection, the just-hired criminal defense counsel quipped in the hallway outside the courtroom, “sheesh, I guess you guys don't have due process in bankruptcy courts.”
Well, yes, as a matter of fact we do, but when counsel starts going on about how innocent his client is, how we're “making a big mistake” because his client has no money and that.
If you've been injured in a car crash caused by another driver, you may be entitled to file a lawsuit to recover compensation for your damages. Learn about the different stages in the lawsuit process.
BoyarMiller – Navigating Your Company through Spoliation Claims and Strategie...BoyarMiller
A Penny Saved is a Penny Earned:
Navigating Your Company through Spoliation Claims and Strategies to Maximize Recovering Attorneys’ Fees
presented by:
Chris Hanslik, Craig Dillard & Matt Veech
NEWBIE LITIGATOR SCHOOL- PART II 2022 - ADR & Settlement Financial Poise
Many cases are litigated outside of the court system through the use of alternative dispute resolution methods such as arbitration, and the vast majority of cases settle before they reach trial, either as a result of the parties’ efforts or with the help of a mediator. This webinar covers the basics of arbitration and mediation, presenting an effective case to a neutral third party, and negotiating and documenting a successful settlement, either directly or with a mediator’s assistance.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- 101 PART II 2022
See more at https://www.financialpoise.com/webinars/
The document discusses understanding claims in arguments. It defines a claim as a statement for or against the status quo that is the focus of an argument. There are three types of claims: claims of fact, value, and policy. The document explains how to explain a claim simply, identifies the three parts of an argument, and discusses the roles and responsibilities of each side in an argument. It notes the importance of understanding claims to stay focused on the argument and not be taken advantage of by others reversing burdens of proof.
This seminar takes an in-depth look at public employee privacy rights in the dynamic evolution of social media. The topics for the presentation cover the following issues:
• An overview of social media use and monitoring of employees
• Public vs. private employees privacy rights
• Public employees' right to privacy in the age of Facebook, Twitter and LinkedIn
• Equal Employment Opportunity Commission notes
• Potential employers' use of social media to make employment decisions
• Best practices of using social media to make employment decisions and minimize employer risk
This presentation educated attendees on Obamacare from the employment law and employer's perspective.
Topics from the presentation included the effects on different size businesses - small, medium and large employers - including relevant potential credit and penalty provisions of the Affordable Care Act which might apply to your business, the role of public programs, timeline for the effective dates of various PPACA provisions and their enforcement as well as typical information and documents sought under an audit by the United States Department of Labor.
More Related Content
Similar to Litigating Employment Discrimination Claims
Lawyers often tell their clients that while they must prepare as if every case will go to trial, more than 90% of cases are resolved before trial. If a settlement is not reached, the resolution typically comes through the court ruling on a dispositive motion. This episode begins with a look at motions to dismiss, with focus on the still-developing Twombly-Iqbal standard, and how that standard is put into practice. We then discuss summary judgment motions. That discussion includes everything from making a summary judgment record to brief writing, to making a cross-motion for summary judgment. This webinar shines a light on what happens to the great percentage of cases that don’t make it to trial.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- 101 PART I 2022
See more at https://www.financialpoise.com/webinars/
Introduction to persuasion and theory of the casekdouat
This document provides guidance on developing an effective legal theory of the case. It discusses evaluating the relevant facts and law, confronting weaknesses, and crafting a persuasive narrative that explains why the client should prevail. The legal theory should have a factual and legal framework and emphasize facts favoring the client. An effective theory is tailored to the audience and tells a story using ethos, pathos and logos to convince the reader.
The document discusses four primary jurisdictional issues affecting the insurer-insured relationship:
1) Venue, choice of law, and mandatory arbitration clauses that can modify parties' rights and obligations under an insurance policy.
2) How "four corners" vs. "all available facts" jurisdictions approach defense rights, obligations, and investigations.
3) How jurisdictions approach the legal concept of "breach" of the duty to defend and its ramifications.
4) How jurisdictions evaluate available damage rights and remedies.
The panel will explore these issues through moderator Gary Gassman and presentations from industry professionals.
An examination under oath (EUO) is a formal proceeding where an insured is questioned under oath by an insurance company's representative about the details of an insurance claim. The purpose is to allow the insurance company to obtain truthful information needed to evaluate the claim. During an EUO, the insured is questioned orally while under oath and their responses are recorded by a court reporter. An insured's failure to fully cooperate with an EUO request can result in the denial of their insurance claim. The EUO allows insurance companies to investigate fraud, clarify insurable interests and damages, and determine if any policy defenses apply.
In the United States, a defendant has an absolute right to appeal a guilty verdict. In addition, you may also be entitled to appeal the sentence you received. Learn more about appealing a criminal conviction in California in this presentation.
The court does not allow the mandatory arbitration clause to be used because it prevents the plaintiffs from proceeding with a class action suit. While arbitration clauses are generally valid, they cannot be enforced if they prohibit class actions. The document also provides definitions and explanations of key legal concepts related to dispute resolution, including mandatory arbitration clauses, mediation vs. arbitration, subject matter jurisdiction, personal jurisdiction, venue, state and federal courts, pleadings, discovery process, and trials.
This document provides guidelines and considerations for handling fraud and RICO claims. It discusses evaluating the viability of fraud claims, common types of fraud, investigating the assets and characteristics of alleged fraudsters, challenges in investigating complex fraud schemes, and considerations for drafting complaints. It emphasizes the need to clearly articulate the specific actions of each defendant and provide factual support for allegations due to the high pleading standards required in fraud cases.
Effective Legal Writing for Your Client and Court AudiencesRichik Sarkar
This CLE focused on making direct arguments in all briefs to ensure critical messages are effectively conveyed and that they answer judges’ primary questions about why they should do what a litigant asks and how they have that authority. Attendees learned how to ensure that their briefs convey not only the necessary legal argument but also the client’s perspective on issues.
San Francisco Isaca 2010 Fall Security Conference C24 Fraud In The Workplac...Pw Carey
This document discusses fraud in the workplace and provides information about three mock trials that could be used to train auditors and whistleblowers. It includes details about Cressey's Fraud Triad, common mistakes whistleblowers make, and the steps involved in a trial. The document is divided into three parts that describe mock trials involving the companies NetApps, Eli Lilly, and Pfizer regarding allegations of fraud, off-label marketing, and non-compliance. Each case outlines the allegations against the companies, the companies' defenses, and how the cases were ultimately resolved through large fines and penalties.
C24 Fraud In The Workplace (3 Mock Trials)Pw Carey
The document discusses fraud in the workplace and provides information about fraud trials and whistleblowers. It discusses Cressey's fraud triad of perceived unshareable need, opportunity, and rationalization. It provides steps in a trial process and discusses mistakes whistleblowers commonly make. The rest of the document appears to be mock trial materials, including opening statements, witness testimony, and details about a $128 million settlement in a case between the GSA and NetApp regarding undisclosed discounts.
San Francisco Isaca 2010 Fall Security Conference C24 Fraud In The Workplac...Pw Carey
1) The document discusses Cressey's Fraud Triad which outlines the three factors that commonly lead to fraud: perceived unshareable financial need, perceived opportunity, and rationalization.
2) It provides an overview of common mistakes made by whistleblowers and steps that should be taken when exposing wrongdoing.
3) The document outlines the typical steps involved in a mock trial, including opening statements, witness questioning, closing arguments, and the jury deliberating to reach a verdict.
This document discusses legal malpractice and how to prevent it. It defines legal malpractice as alleging that a lawyer negligently performed legal services, with examples like missing filing deadlines or failing to advise a client properly. To prevent malpractice, clients should communicate clearly with their lawyer, ask questions, and stay involved. Comments discuss how far lawyer immunity extends - there must be proof of mishandling, not just differences of opinion on case value. Questions address barrister immunity and whether a client can sue their lawyer after settling a case.
This document outlines the typical stages of a car accident lawsuit:
1) The first step is determining if you have a valid claim and filing a complaint within the 2-year statute of limitations.
2) The defendant will respond by admitting fault, denying allegations, or filing counterclaims. Preliminary motions may also be filed.
3) Discovery and investigation of evidence takes place through examining documents and witness depositions.
4) Settlement negotiations often occur through mediation or if evidence strongly supports the claim. If not resolved, the case proceeds to trial.
ADR & Settlement (Series: Newbie Litigator School 101 - Part 1)Financial Poise
Many cases are litigated outside of the court system through the use of alternative dispute resolution methods such as arbitration, and the vast majority of cases settle before they reach trial, either as a result of the parties’ efforts or with the help of a mediator. This webinar covers the basics of arbitration and mediation, presenting an effective case to a neutral third party, and negotiating and documenting a successful settlement, either directly or with a mediator’s assistance.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/adr-settlement-2021/
CASE INFORMATIONFind a court case where the company indicated t.docxcowinhelen
CASE INFORMATION:
Find a court case where the company indicated they were surprised the employee charged was a fraudster (use the *KU library (Westlaw) to find the court case).
ANALYSIS REQUIREMENTS:
Based on your readings, literature, and/or the Fraud Examiners Manual analyze the case and include the following in your discussion:
What type of fraud schemes took place in this case?
Analyze the internal controls of this company for "red flags".
Identity why you think the company did not suspect this person was a fraudster and what policies would you put in place for this company to stop this fraud in the future?
WRITING REQUIREMENTS:
· 3-5 pages (not including title page, abstract, or reference page)
· Proper APA format
· Minimum of 3 scholarly sources (not including your textbook)
GRADING REQUIREMENTS:
Click on link to view grading requirements
AUGHT IN THE CROSSFIRE: THE (SUPPOSEDLY) INNOCENT ATTORNEYS WHO REPRESENT ACCUSED FRAUDSTERS
Editor's Note:This article is the second in a series calling for a more aggressive response to bankruptcy and other fraud. The first in the series was initially published in the May 2009 issue, entitled “A Call to Arms: A Bankruptcy Fraud Superfund.”
In law school, we were taught that when representing a person accused of committing a crime, we're never to ask, “did you do it?” From “innocent until proven guilty” to “representation for all,” the axiom was not to know whether the client “did it,” but instead to protect the rights of the accused, even if they did do it. While this ideology is arguably consistent with the will of our forefathers, recall that the context is criminal defense. What's more, the ideology is not without obvious limits in its application, criminally or civilly. Based on my personal experience, many civil lawyers honor the principle of “don't ask, don't tell” to an extreme--and in so doing, have exceeded the limits and crossed the boundary line of ethical conduct.
Before digging too deep into the ethics, though, let's consider a particular criminal defense attorney. The case was an involuntary bankruptcy under §303, and my creditor client successfully obtained the appointment of a gap trustee, more elusive than The Loch Ness Monster herself. The gap trustee and my client then secured an ex parte order for an unannounced inspection of the target's offices. After forcing the target and his staff out the door for a spell, the target hurriedly brought in both bankruptcy and criminal defense counsel. At the conclusion of the hearing that resulted in the denial of a motion to reconsider the judge's order to allow the inspection, the just-hired criminal defense counsel quipped in the hallway outside the courtroom, “sheesh, I guess you guys don't have due process in bankruptcy courts.”
Well, yes, as a matter of fact we do, but when counsel starts going on about how innocent his client is, how we're “making a big mistake” because his client has no money and that.
If you've been injured in a car crash caused by another driver, you may be entitled to file a lawsuit to recover compensation for your damages. Learn about the different stages in the lawsuit process.
BoyarMiller – Navigating Your Company through Spoliation Claims and Strategie...BoyarMiller
A Penny Saved is a Penny Earned:
Navigating Your Company through Spoliation Claims and Strategies to Maximize Recovering Attorneys’ Fees
presented by:
Chris Hanslik, Craig Dillard & Matt Veech
NEWBIE LITIGATOR SCHOOL- PART II 2022 - ADR & Settlement Financial Poise
Many cases are litigated outside of the court system through the use of alternative dispute resolution methods such as arbitration, and the vast majority of cases settle before they reach trial, either as a result of the parties’ efforts or with the help of a mediator. This webinar covers the basics of arbitration and mediation, presenting an effective case to a neutral third party, and negotiating and documenting a successful settlement, either directly or with a mediator’s assistance.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- 101 PART II 2022
See more at https://www.financialpoise.com/webinars/
The document discusses understanding claims in arguments. It defines a claim as a statement for or against the status quo that is the focus of an argument. There are three types of claims: claims of fact, value, and policy. The document explains how to explain a claim simply, identifies the three parts of an argument, and discusses the roles and responsibilities of each side in an argument. It notes the importance of understanding claims to stay focused on the argument and not be taken advantage of by others reversing burdens of proof.
Similar to Litigating Employment Discrimination Claims (20)
This seminar takes an in-depth look at public employee privacy rights in the dynamic evolution of social media. The topics for the presentation cover the following issues:
• An overview of social media use and monitoring of employees
• Public vs. private employees privacy rights
• Public employees' right to privacy in the age of Facebook, Twitter and LinkedIn
• Equal Employment Opportunity Commission notes
• Potential employers' use of social media to make employment decisions
• Best practices of using social media to make employment decisions and minimize employer risk
This presentation educated attendees on Obamacare from the employment law and employer's perspective.
Topics from the presentation included the effects on different size businesses - small, medium and large employers - including relevant potential credit and penalty provisions of the Affordable Care Act which might apply to your business, the role of public programs, timeline for the effective dates of various PPACA provisions and their enforcement as well as typical information and documents sought under an audit by the United States Department of Labor.
A handout for the presentation "Political Subdivision Immunities" takes an in-depth look at the immunities provided to political subdivisions under the Governmental Tort Claims and Insurance Reform Act, W.Va. Code § 29-12A-1, et seq., (1986).
Topics from the handout include:
• Recent opinions invoking the immunties under the WV Governmental Claims and Insurance Reform Act
• Political Subdivision Immunities
• Qualified Immunity
• Interlocutory Appeal Rights
• State Constitutional Tort Cause of Action and avoiding the Statutory Protections of the Governmental Tort Claims and Insurance Reform Act
An informative presentation on the evolution of green building practices that includes important topics such as
• EPA Definition of Green Building
• Leadership and Energy and Environmental Design (LEED) Program
• Impact of Green Building Initiatives on Construction Defects and the impact of LEED
• How to measure a building's impact
• Why follow LEED standards???
• Measurable benefits of green technology
• Potential problems and theories of liability
• Negligence and economic loss rule
Seminar Handout for Construction Defect Litigation: from A to Z Bailey and Wyant PLLC
Construction Defect Litigation: from A to Z seminar covers issues of commercial general liability insurance coverage, duties of defense, indemnity, insurance debates, surety bonds, wrap insurance options and class action suits.
Seminar material that covered topics that as commercial general liability insurance coverage issues, duties of defense, indemnity, insurance debates, surety bonds, wrap insurance options and class action suits.
Bailey & Wyant, PLLC is a full-service law firm with offices in Charleston and Wheeling, West Virginia. The firm offers a broad array of legal services across various practice areas to a diverse client base. Bailey & Wyant's objective is to exceed client expectations by delivering dynamic representation that meets each client's specific goals and interests. The firm strives to consistently deliver effective and dynamic representation in every aspect of client representation.
A Guide to General West Virginia Litigation Principles - Bailey & Wyant PLLCBailey and Wyant PLLC
Important legal topics addressed include: West Virginia Tort Law; Porperty Damage Claims; Damages; Governmental Tort Claims & Insurance Reform Act; Qualified Immunity; Deliberate Intent; Joint & Several Liability; Collateral Sources; Procedural Strategies; Uninsured/Underinsured Motorist; Unfair Trade Practices; Handling Indemity Issues; Employment law for Public Entities and many many others.
Balancing an employer's right to know vs. privacy; wireless devices and employee's privacy violations; monitoring and creating policies regarding internet, email, tesxting and other electronic communications; wireless devices and employee's and employer's privacy violations; off the job behavior;
Charles R. "Chuck" Bailey is the Managing Member of the Charleston office of Bailey & Wyant, PLLC. He received his law degree from West Virginia University College of Law and Bachelor's Degree in Journalism from West Virginia University. Mr. Bailey practices civil litigation with a focus on labor and employment law, medical malpractice, and other areas. He serves as General Counsel for the Central West Virginia Regional Airport Authority and lectures on various legal topics.
4 Benefits of Partnering with an OnlyFans Agency for Content Creators.pdfonlyfansmanagedau
In the competitive world of content creation, standing out and maximising revenue on platforms like OnlyFans can be challenging. This is where partnering with an OnlyFans agency can make a significant difference. Here are five key benefits for content creators considering this option:
Cover Story - China's Investment Leader - Dr. Alyce SUmsthrill
In World Expo 2010 Shanghai – the most visited Expo in the World History
https://www.britannica.com/event/Expo-Shanghai-2010
China’s official organizer of the Expo, CCPIT (China Council for the Promotion of International Trade https://en.ccpit.org/) has chosen Dr. Alyce Su as the Cover Person with Cover Story, in the Expo’s official magazine distributed throughout the Expo, showcasing China’s New Generation of Leaders to the World.
Brian Fitzsimmons on the Business Strategy and Content Flywheel of Barstool S...Neil Horowitz
On episode 272 of the Digital and Social Media Sports Podcast, Neil chatted with Brian Fitzsimmons, Director of Licensing and Business Development for Barstool Sports.
What follows is a collection of snippets from the podcast. To hear the full interview and more, check out the podcast on all podcast platforms and at www.dsmsports.net
Storytelling is an incredibly valuable tool to share data and information. To get the most impact from stories there are a number of key ingredients. These are based on science and human nature. Using these elements in a story you can deliver information impactfully, ensure action and drive change.
Unveiling the Dynamic Personalities, Key Dates, and Horoscope Insights: Gemin...my Pandit
Explore the fascinating world of the Gemini Zodiac Sign. Discover the unique personality traits, key dates, and horoscope insights of Gemini individuals. Learn how their sociable, communicative nature and boundless curiosity make them the dynamic explorers of the zodiac. Dive into the duality of the Gemini sign and understand their intellectual and adventurous spirit.
Anny Serafina Love - Letter of Recommendation by Kellen Harkins, MS.AnnySerafinaLove
This letter, written by Kellen Harkins, Course Director at Full Sail University, commends Anny Love's exemplary performance in the Video Sharing Platforms class. It highlights her dedication, willingness to challenge herself, and exceptional skills in production, editing, and marketing across various video platforms like YouTube, TikTok, and Instagram.
Best Competitive Marble Pricing in Dubai - ☎ 9928909666Stone Art Hub
Stone Art Hub offers the best competitive Marble Pricing in Dubai, ensuring affordability without compromising quality. With a wide range of exquisite marble options to choose from, you can enhance your spaces with elegance and sophistication. For inquiries or orders, contact us at ☎ 9928909666. Experience luxury at unbeatable prices.
Dive into this presentation and learn about the ways in which you can buy an engagement ring. This guide will help you choose the perfect engagement rings for women.
Zodiac Signs and Food Preferences_ What Your Sign Says About Your Tastemy Pandit
Know what your zodiac sign says about your taste in food! Explore how the 12 zodiac signs influence your culinary preferences with insights from MyPandit. Dive into astrology and flavors!
The APCO Geopolitical Radar - Q3 2024 The Global Operating Environment for Bu...APCO
The Radar reflects input from APCO’s teams located around the world. It distils a host of interconnected events and trends into insights to inform operational and strategic decisions. Issues covered in this edition include:
2. Voir Dire
Employment law is about “motivation.”
At trial, the theme of your case, voir dire, direct examination, cross
examination, closing argument, and each and every element of
your case will focus on motivation.
The jury is instructed that if they find by a preponderance of the
evidence that a motivating factor in the employer’s decision to
discharge the employee was based upon an impermissible motive,
then they may find for the plaintiff. On the other hand, if the jury
finds that the employer was motivated to discharge the plaintiff
because of a legitimate, non-discriminative motive, they may find
for the defendant.
Remember that the impermissible motive need only be “a
motivating factor,” not the sole motivating factor.
3. Voir Dire
Most employment cases are mixed motive
types, which places both the plaintiff’s and
the employer’s conduct at the workplace
under the microscope. Thus, you need to find
out what motivates the jury during voir dire.
4. Voir Dire
The paramount goal of voir dire is to identify those jurors
who are, more likely than not, motivated to accept your
theory of the case.
Ask questions where a juror may answer affirmatively. Then
ask open-ended questions where they can explain their
belief.
This line of questioning will have the jurors explaining to
other jurors why they believe that a certain attribute, such
as attendance, is an important part of the job.
Here, you have not only introduced and laid the ground
work for the theme of your case, but you have also
identified jurors who are going to work for you.
5. Voir Dire: Challenges for Cause
Murphy v. Miller, 222 W.Va. 709, 671 S.E.2d 714 (2008)
When considering whether to excuse a prospective juror for cause, a trial
court is required to consider the totality of the circumstances and grounds
relating to a potential request to excuse a prospective juror, to make a full
inquiry to examine those circumstances and to resolve any doubts in favor
of excusing the juror.
If a prospective juror makes an inconclusive or vague statement during
voir dire reflecting or indicating the possibility of a disqualifying bias or
prejudice, further probing into the facts and background related to such
bias or prejudice is required.
Once a prospective juror has made a clear statement during voir dire
reflecting or indicating the presence of a disqualifying prejudice or bias,
the prospective juror is disqualified as a matter of law and cannot be
rehabilitated by subsequent questioning, later retractions, or promises to
be fair.
6. Voir Dire: Peremptory Challenges
Murphy v. Miller, 222 W.Va. 709, 671 S.E.2d 714 (2008)
citing Syl. Pt. 3, Price v. Charleston Area Med. Ctr., 217 W.Va. 663,
619 S.E.2d 176 (2005)
• Whether the interests of two or more plaintiffs or two or more
defendants are antagonistic or hostile for purposes of allowing
separate peremptory challenges under Rule 47(b) of the West
Virginia Rules of Civil Procedure , the allegations in the complaint,
the representation of the plaintiffs or defendants by separate
counsel and the filing of separate answers are not enough.
• Rather, the trial court should also consider the stated positions and
assertions of counsel and whether the record indicates that the
respective interests are antagonistic or hostile.
7. Voir Dire: Peremptory Challenges
Murphy v. Miller, 222 W.Va. 709, 671 S.E.2d 714 (2008)
citing Syl. Pt. 3, Price v. Charleston Area Med. Ctr., 217 W.Va. 663,
619 S.E.2d 176 (2005)
• In the case of two or more defendants, the trial court should
consider a number of additional factors including, but not limited
to:
– (1) whether the defendants are charged with separate acts of
negligence or wrongdoing,
– (2) whether the alleged negligence or wrongdoing occurred at
different points of time,
– (3) whether negligence, if found against the defendants, is subject to
apportionment,
– (4) whether the defendants share a common theory of defense, and
– (5) whether cross-claims have been filed.
8. Voir Dire: Peremptory Challenges
Murphy v. Miller, 222 W.Va. 709, 671 S.E.2d 714 (2008)
citing Syl. Pt. 3, Price v. Charleston Area Med. Ctr., 217 W.Va. 663,
619 S.E.2d 176 (2005)
• To warrant separate peremptory challenges, the plaintiffs or
defendants, as proponents, bear the burden of showing that their
interests are antagonistic or hostile and that separate peremptory
challenges are necessary for a fair trial.
9. Jury Instructions
To be able to craft effective jury instructions, you need to
comprehensively research the issues. You must thoroughly
read every case in West Virginia that addresses the
particular issues you are trying.
From these cases, you must pick out the legal points that
will assist the trier in fact in reaching a conclusion on behalf
of your client.
Although you are restricted from “arguing” your case, to be
subtly persuasive, you may be creative in fashioning them.
One technique is to reiterate a certain point of law
through-out the jury instruction. This point will be non-
argumentative, but clearly and concisely state the legal
point to be made.
10. Jury Instructions
For instance, the defense should try end the jury
instruction as follows:
◦ “If the plaintiff fails to meet each and every element of his/her
case, you may find on behalf of the defendant. The burden of
persuasion always remains with the plaintiff and it is her duty to
persuade the jury by a preponderance of evidence that a
motivating factor in her discipline was because of her gender and
not because of legitimate, non-discriminatory reasons.”
◦ Note: The burden of persuasion never shifts to the defendant,
but in a mixed motive case, the burden of proof may shift to the
defendant if the plaintiff creates a prima facie case of
discrimination, then it is incumbent upon the plaintiff to present
legitimate, non-discriminatory reasons for the adverse action.
Then, the plaintiff may rebut this evidence by showing that the
proffered reasons for the conduct are pre-textual.
11. Jury Instructions
In most cases, especially in employment cases,
there are at least three instructions that should
be emphasized to the jury.
Whether you represent plaintiff or defendant,
make sure the jury understands what a
preponderance of the evidence is.
◦ Plaintiffs often use the preponderance of evidence to
their advantage by comparing it to beyond a
reasonable doubt.
◦ Conversely, defendants relay to the jury that the
preponderance of the evidence is more than 50/50. It
must be more likely than not.
12. Jury Instructions
Read the standard jury charge of the court very
carefully because the jury charge may not be entirely
accurate or it may not comport with your theme of the
case. Judges usually are receptive to changes you want
to make to the jury charge, as long as you can support
it with case law.
Make sure your jury instructions are supported by case
law. Cite specific West Virginia authority for your case
and applicable federal authority. The Supreme Court
of Appeals of West Virginia has ruled that while federal
authority is not always binding, it does carry weight.
13. Opening Statement
• Your opening statement should be about
motivation. While you should exercise
caution regarding arguing the law at the
opening statement stage, you need to lay the
foundation for how the jury is going to be
instructed.
• Who? What? When? Where? How? These
questions should be your mantra. Why people
act and what motivates them.
14. Closing Argument
• Remember that you must always show the
jury how the facts, when applied to the law,
lead to the inescapable conclusion that the
jury should find on behalf of your client.
• Show the jury the instructions
• List the facts when tied to the jury instruction
that will lead the jury to know to rule in your
client’s favor.
15. Closing Argument: “Motivation”
Defense: Tell the jury that the employer made a
mistake and should have acted sooner and been
more honest. However, your client is a
professional salesman who has always been
confident that he could motivate people to excel
and he simply could not face the fact that he
could not rehabilitate his employee. While he
was motivated for her to succeed, she was
motivated to use her charm, skill and talents not
to the betterment of the company, but for her
own self interest.
16. Closing Argument: “Motivation”
• Plaintiff: emphasize that the facts show that
the employee was motivated to succeed but
that race, gender or age motivated the
employer to treat her differently.
• A plaintiff must constantly remind the jury
that you need not prove that the sole
motivating factor was the protected class or
conduct, but was a motivating factor.
17. Compelling Case Theme
• In employment cases, it is imperative that you
know the law. The law directs and focuses
you on the theme of the case.
• Develop your theme immediately, be
prepared to modify your theme.
• An over-arching theme contains a main plot
and many subplots.
18. Compelling Case Theme:
Your Client’s Motives
• The plaintiff must convince the jury that the
complaint against the employer was
motivated by a true legal wrong not the
simple frustrations of the job.
• The defendant needs to show that the
employer was motivated to help the employee
succeed, but for legitimate reasons, an
adverse action had to be taken irrespective of
the plaintiff’s protected class.
19. Direct and Cross Examination
• Remember that in direct and cross
examination every question will be designed
to convey the theme of your case to the jury.
• You must involve and direct your client in
developing testimony that will motivate the
jury to understand the client’s position and
ultimately return a verdict in his or her favor.
20. Strategies
• For both sides, embracing the truth and not
running from the problems is a winning
strategy. The trick is to find it, recognize it,
and turn it to your advantage.
• Both sides should figure out what aspect of the
human condition applies to their client and will
appeal to the jury. 34 DEC Trial 20
21. Mock Trial: Direct and Cross
Examination of Expert Witness
72 Mich. B.J. 1046
• Mock trials are useful because it targets and
evaluates the critical issues; identifies
appropriate juror profiles; exposes litigation risks;
and enhances overall case strategy.
• Utilize the opponent’s expert deposition
testimony and read relevant parts of the
testimony for the mock jury.
• The bottom line in evaluating the expert: were
they persuasive?
22.
23.
24.
25. Lowering the bar
A man was chosen for jury duty who very much wanted to be
dismissed from serving. He tried every excuse he could think of but
none of them worked. On the day of the trial he decided to give it
one more shot. As the trial was about to begin he asked if he could
approach the bench.
“Your Honor,” he said, ” I must be excused from this trial
because I am prejudiced against the defendant. I took one
look at the man in his blue suit with those beady eyes and
that dishonest face and I said ‘He’s a crook! He’s guilty,
guilty, guilty!’ So your Honor, I can not possibly stay on
this jury!”
With a tired annoyance, the judge replied, “Get back in the
jury box. That man is his lawyer.”