denied” may ring true from your client’s perspective. However, from a damages point of view, delay can be on the plain- tiff ’s side. If the case drags out for years, the damages picture becomes clearer and tends to grow. Injunctive relief may not fall within
the parameters of this article about damages but consider how a claim for reinstatement might improve your settle- ment position. Most employers are loath to accept a terminated employee back into the fold – even when the alleged infraction is minor or unrelated to job performance. Indeed, employers are able to place serious restrictions on damages by making unconditional offers of re- employment. In my experience emotion is stronger than common sense and they steadfastly resist doing so. Consequently, the threat of an order of reinstatement has value at the settlement table. Advise your clients to never utter the words “I’d never go back there.” I advise them that their goal is to go back to work for at least one day – at least
for spite. Attorneys fees can often be the tail
that wags the dog. Though they are not actually damages, they mount over time and, like delay, can increase the value of the case. Make sure to comply with local Federal rules regarding quarterly reports. Md. Local Federal Rules, Appx. B. Punitive Damages. The Supreme
Court, in Exxon Shipping Co. v. Baker, --- U.S. ----, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) recently held that, under federal maritime common law, punitive damages could not exceed the amount of actual damages. The Court made it clear, however, that its inquiry involved “reviewing a jury award for conformity with maritime law, rather than the outer limit allowed by due process.” Id. at 2626. That is, the Court did not conclude that the Constitution prohibits a punitive damage award greater than the amount awarded for compensatory damages. It remains to be seen how this case affects punitive damages in employment cases. Practice Pointer. The benefit of
graphs, easily created from a spread- sheet, cannot be overstated. In a gender discrimination case the graph below
Winter 2009 Trial Reporter 45
Once the defense is dealing with your numbers, on your spreadsheet, you are on the way to the bank.
was used to show discrimination against women. Of course, the men’s salaries are represented by blue lines and the women’s salaries are represented by pink lines. Gender discrimination is apparent in this graph. The same data was used in calculating lost pay. The positive side of the ledger cannot
be addressed without some comments about the negative side of the ledger. Have a frank discussion with your client early on in the representation regarding mitigation of damages. Insist that the plaintiff do more than the minimum required by the Unemployment office and that efforts of the job search are maintained and organized. I often sug- gest that we wait and see how things go before jumping into litigation. Although I cannot honestly say I’ve seen it hap- pen, the potential plaintiff might end up sending his former boss a thank-you note if he finds a better job. In conclusion, maximizing damages
in employment termination cases often turns lawyers into accountants. Spend time with your spreadsheets and graphs and make sure that the defense knows you have marshaled your facts. A spread- sheet can become your most effective
exhibit. The defense will sometimes hand you a bonus on a silver platter if it quibbles with your spreadsheet. Once the defense is dealing with your num- bers, on your spreadsheet, you are on the way to the bank. n
About the Author F.J. Collins is a graduate of Loyola
College and the University of Maryland Law School. After law school, he served as a judicial clerk on the Maryland Court of Special Appeals. Mr. Collins has con- centrated his practice in the area of civil litigation with expertise in personal in- jury, medical malpractice and civil rights litigation, civil jury trials, overtime wage claims, labor and employment law. He is admitted to practice in Maryland and Florida and the federal courts in Mary- land and the District of Columbia. Mr. Collins was a long-term mem-
ber of the Maryland Association for Justice. He has also been a lecturer for the Maryland Association for Justice regarding trial techniques. He currently represents numerous unions, employees and individuals with a wide range of legal needs.
Gender Discrimination in Pay
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