National Litigation Strategy Project
Through the NLSP, The Institute develops approaches for preventing summary judgment abuse in employment cases. Current activities include:
- Participating as amicus curiae (friend-of-the-court) in significant cases questioning unfair and/or unequal employment practices and laws.
- Producing model litigation resources for important issues affecting the ability of employees to vindicate their workplace rights.
- Publishing the "Summary Judgment Toolkit," a series of articles on legal strategies addressing obstacles that thwart individuals in enforcing their workplace rights in court.
- Providing technical assistance and support to employee rights advocates.
The Institute's work in this arena is guided by the NLSP Task Force, which includes members of the academic community, leaders of the plaintiffs' employment bar, and The Institute's staff.
Summary Judgment Reform: Increasing Awareness
- The Institute's Summary Judgment Toolkit
- Top 10 Tips To Make Your Case "Summary Judgment Proof"
- Trial By Jury Or Trial By Motion?: Summary Judgment, Iqbal, And Employment Discrimination
Launched in 2010, The Institute's Summary Judgment Toolkit educates the judiciary and broader legal community about the need for summary judgment reform and supports employee rights advocates in defeating motions for summary judgment. By taking aim at the "problem doctrines"-common judicially imposed obstacles to workers enforcing their rights to a jury trial and a fair and just workplace-The Toolkit provides employee rights advocates with resources to help them to overcome the summary judgment hurdle and keep their clients' cases in court.
- Securing The Right To A Jury Trial: Attacking "Stray Remarks" At Summary Judgment
- Preserving The Right To A Jury Trial By Preventing Adverse Credibility Inferences At Summary Judgment
- Cracking The Comparator Code
The Institute's Top 10 Tips To Make Your Case “Summary Judgment Proof” was compiled from presentations at the National Employment Lawyers Association's (NELA's) seminar, Surviving Summary Judgment In Employment Cases (October 2009); a plenary session at the 2010 NELA Annual Convention titled "The Institute's National Litigation Strategy Project: Reforming Summary Judgment Abuse" (June 2010); two panels at the 2011 NELA Annual Convention, "Lessons From The Professors: Defeating Summary Judgment & Enforcing The Right To Trial By Jury" and "Using Techniques From Other Areas Of The Law To ‘Prosecute' Employment Cases" (June 2011); and The Institute's Symposium, Trial By Jury Or Trial By Motion?: Summary Judgment, Iqbal, And Employment Discrimination (April 2012).
Nearly 200 employee advocates, judges, and academics joined The Institute on April 23, 2012 at New York Law School (NYLS) for a Symposium on "Trial By Jury Or Trial By Motion?: Summary Judgment, Iqbal, And Employment Discrimination." The Symposium examined the high failure rates of plaintiff-employees in employment discrimination cases and explored potential strategies to reverse this growing trend. The Institute brought together academics, judges, practitioners, and members of the general public for a robust discussion of the ways in which impeding access to the courts, and the right to a jury trial in particular, has serious consequences for employees who face discrimination and unlawful treatment in the workplace. The articles from the Symposium will be published in an issue of the NYLS Law Review in the 2012-2013 academic year.
We dedicated the Symposium in memory of Professor Robert Belton, who passed away in February 2012. A founding member of the NLSP, Professor Belton was the inspiration for The Institute's Symposium and worked with us to make it a reality.
Videos of the Symposium can be found on the NYLS Youtube Channel.
A View From The Bench-The Judges' Perspective On Summary Judgment In Employment Discrimination Cases
The Symposium's first presentation was moderated by NELA member Richard T. Seymour, formerly the Chair of the American Bar Association's Labor and Employment Section. The panel featured Judge Bernice B. Donald of the U.S. Court of Appeals for the Sixth Circuit, and federal district court judges Mark W. Bennett (N.D. Iowa), Nancy Gertner (Retired, District of Massachusetts, and now teaching at Harvard Law School), and Lee H. Rosenthal (S.D. Texas).
Problems With Litigating Summary Judgment In Employment Cases
This second panel of the day provided attendees with a variety of lenses through which to view the current summary judgment landscape, as an academic (Professor Ann McGinley (University of Nevada, Las Vegas)), a litigator (David L. Lee (Law Offices of David L. Lee, Chicago, IL)), and litigators-turned-academics (Professor Deborah Eisenberg (University of Maryland) and Professor Scott Moss (University of Colorado)) identified some of the practices that lead to higher rates of summary judgment in employment cases. Professor Minna Kotkin (Brooklyn Law School) moderated this session.
Lunch With Keynote Speaker The Honorable Denny R. Chin, U.S. Court Of Appeals For The Second Circuit
Former NELA member and current Second Circuit Judge Denny Chin provided attendees with his perspectives on summary judgment gleaned from his rare combination of experiences as a plaintiffs' employment lawyer, federal district court judge, and now circuit court judge.
The Interplay Of Pleading Standards & Summary Judgment
The third panel of the Symposium shifted the focus of the discussion from summary judgment to pleading standards. Moderated by Professor Suja A. Thomas (University of Illinois), the panelists addressed the impact of recent U.S. Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on civil litigation, and whether those decisions have made the motion to dismiss the real battleground in employment cases. The panelists were Judge Nancy Gertner, Elizabeth Grossman (EEOC Regional Attorney, New York), Professor Suzette Malveaux (Catholic University), and Professor Elizabeth Schneider (Brooklyn Law School).
Closing Q & A With Final Remarks
The Symposium's closing panel provided participants with an opportunity to reflect on the issues addressed throughout the day. Institute Program Director Rebecca M. Hamburg Cappy moderated the session, which featured Judge Mark W. Bennett and Professor Joseph A. Seiner (University of South Carolina School of Law).