Seyfarth Shaw, LLP recently issued the following announcement.
Seyfarth Partner Lynn Kappelman is pleased to participate in Stafford Publication’s "Challenges at Trial Posed by The Duty to Mitigate Damages in Employment Discrimination and Termination Cases" on Wednesday, March 11, 2020 from 12:00 p.m. - 1:30 p.m. CST.
Defense counsel must weigh the concerns of conceding liability at trial by discussing damages at all, against the need to give the jury tools to adequately value the case if they find for Plaintiff. Meanwhile, the Plaintiff's counsel must weigh during the trial the need to show Plaintiff tried to mitigate against the likelihood that the jury will factor in Plaintiff's replacement compensation to reduce the ultimate verdict.
Employment plaintiffs, like all other plaintiffs, have a duty to mitigate damages. In the context of post-termination pay, that means finding a new job. Jury Instructions make crystal clear that the defendant bears the burden of proving that plaintiff failed to adequately mitigate her damages, and defendant must do so by showing that there were available positions for the plaintiff that were comparable in duties and pay. Producing evidence of opportunities immediately post-termination can be challenging when the case has dragged on for years. Expert testimony can play a role in such proof.
Plaintiffs must be coached to keep records of all job searches--and rejected opportunities--and counsel must learn how to present them at trial in an admissible format so that these can be shared with the jury.
Our panel will address tips and tricks for Plaintiff's and Defendant's counsel presenting evidence at trial regarding Plaintiff's mitigation of damages.
We will review practical and legal matters including:
What are the relevant sources of federal and state law regarding mitigation?
Are there evidentiary steps a plaintiff can take to prove mitigation?
What are the practical implications of Defendant's burden regarding Plaintiff's mitigation?
How can a defendant strategically raise mitigation without seemingly admitting damages?
Who can testify as to the adequacy of Plaintiff's efforts to mitigate?
After our presentations, we will engage in a live question and answer session with participants so we can answer your questions about these important issues directly.
Original source can be found here.