I do a fair amount of speaking, but the current six-week stretch is unusual.
Annual Updates of Employment Law
On October 27, Jeff Wohl from Paul Hastings in San Francisco and I did our usual annual two-hour update on employment law for the Arizona State Bar in Sedona. It’s always fun working with Jeff. Some might think we agree on too much —that’s the nature of employment law — but there is still good room for healthy disagreement. One of the reasons I appreciate the Arizona State Bar inviting me back again and again is that I like the people, and I love the State and the desert. I spent part of my childhood growing up in Arizona and I always love to get back.
The annual update in Arizona is usually my last of the year. It normally starts in April in Philadelphia for the Pennsylvania Bar Institute, where I co-present with Michal Torchia, continues in June for the National Employment Lawyers Association where I co-present with Prof. Eric Schnapper of the University of Washington Law School, and ends with the Arizona State Bar. This year, the Georgia State Bar has invited me to give my update on employment law in Atlanta on December 7.
Money Damages: How to Keep Awards Low, and How to Get High Awards
In between these bookends, the Pennsylvania Bar Institute has decided it did not get enough of me in April. I had given a separate presentation on Minimizing and Maximizing Damage Awards, and it was well-enough received that they asked me to do it again on November 13 for the PBI Employment Law Institute-West in Pittsburgh.
I have to say that I’ve taken some flak from plaintiffs’ attorneys, asking why I’m training defense lawyers in how to minimize damages, and not just training everyone in how to maximize them. It’s a good question, and I think I have good answers.
First, every plaintiff’s lawyer needs to know what the best opposing lawyers will do to cut down damage awards in the event a defendant is found liable, and every good defense lawyer needs to know what the best opposing lawyers will do to drive up the damages in that event. We all need to stand in each other’s shoes, and I’m convinced we would all be better advocates if we knew how the other side thinks and have a common language and understanding in settlement discussions and in litigation.
Personally, I also think we would all do a better job representing our clients if we sometimes represented the other side. Issue conflicts and marketing may rule that out for many, but my impression is that an increasing number of lawyers outside of large firms sometimes work the other side of the street. I advise employers myself, from time to time, and some of the lawyers I really respect take cases on either side.
Second, I also act as a mediator for the AAA, the American Health Lawyers Association in employment cases, the EEOC in Federal-sector cases, and ad hoc, and constantly have to engage in “what-if” scenarios, to illustrate to each side the risks they would run if the other side tumbled to what they could do if they just thought of it.
Settlement is a way of controlling risks, and everyone needs a good sense of when what seems like firm ground under their feet is capable of turning into quicksand.
Ethically, I cannot tell either side what they could do to maximize their position; I can only alert them to the risks I think they are running if they do not settle and the other side goes for the kill.
Everyone seems to find the approach valuable, judging from the raised eyebrows, their kicking me out of the room while they discuss what has been said, their subsequent changes of position, and the handshakes all around as a settlement is finalized.
Third, I also act as an arbitrator for AAA, AHLA, and ad hoc, and have to be aware of the ins and outs of this body of strategies, tactics, and law.
In each of these roles, I would not be doing my job without knowing these means of minimizing and maximizing damages awards, and their limits. It seems only fair to pass this on.
Evidence Questions That Come Up All the Time
Finally, I also spoke to the Pennsylvania Bar Institute-West on November 13 on “Recurring Discovery and Evidence Problems in Employment Litigation.” It’s one of my favorite topics, because the answers can change like a weather vane depending on the purpose of the evidence and the context.
In candor, I have to confess that I’ve been refining my ideas on these topics by presenting them annually for years at the American Law Institute’s July annual programs on employment law in Santa Fe, with distinguished defense lawyers and Federal judges shooting holes in every point I have not adequately thought through. And vice versa, of course. The collegial nature of the discussion, and sometimes extensive follow-up discussions with faculty members and attendees, make this really valuable.
On December 8, I look forward to four months of relaxation before the cycle starts anew in April 2019.