Deposing & examining the human resources expert

• Author: Tod F. Schleier
• Pages: 623-708

D&E: HUMAN

RESOURCES EXPERT

4-1

CHAPTER 4

DEPOSING & EXAMINING THE

HUMAN RESOURCES EXPERT

I. BASIC PRINCIPLES

A. Court Rulings Varied and Unpredictable

§4:01 Different Standards, Approaches to Admissibility

§4:02 Early Recognition of H.R. Expert Testimony in Crenshaw Case

§4:03 Survey: Cases Allowing H.R. Expert Testimony

§4:04 Survey: Cases Rejecting H.R. Testimony

[§4:05 Reserved]

B. Sexual Harassment Cases

§4:06 To Prove Ellerth/Faragher Aff‌irmative Defense

§4:07 Decisions Limiting Expert’s Testimony

§4:08 In Practice: Is Expert Testimony Required?

C. Gender Stereotyping

§4:09 Governing Law

§4:10 Cases Admitting Expert Testimony

§4:11 Cases Rejecting Expert Testimony

D. Disability Discrimination

§4:12 Discrimination in Hiring—Direct and Cross-Examination at Trial

II. DAUBERT PROVIDES ANALYTICAL FRAMEWORK FOR EXPERT TESTIMONY

A. Governing Principles

§4:13 Trial Courts as Gatekeepers

§4:14 Daubert Analysis Applies to All Expert Testimony

§4:15 Trial Court Has Wide Discretion to Admit or Exclude Expert Testimony

B. Applying Daubert : Attacking and Defending H.R. Expert Testimony

1. Basic Points & Procedures

§4:16 Grounds for Challenge—Overview

§4:17 When, How to Challenge Admissibility

[§§4:18 – 4:19 Reserved]

2. Is Expert Qualif‌ied?

§4:20 Specialized Knowledge, Skill, Experience, Training or Education?

§4:21 In Practice: Qualifying an H.R. Expert

§4:22 In Practice: Challenging H.R. Expert’s Qualif‌ications

[§§4:23 – 4:24 Reserved]

D&E: HUMAN

RESOURCES EXPERT

Deposing & Examining Employment Witnesses 4-2

3. Does Testimony Address Matters within Jurors’ Knowledge

a. Grounds for Excluding H.R. Testimony

§4:25 “Human Resources” Is Not Science

§4:26 Testimony Goes to Ultimate Issue of Discrimination

§4:27 Jurors’ Job Is to Make Fact Determinations

§4:28 Jurors Are Capable of Assessing Human Motivations

[§4:29 Reserved]

b. Arguments for Admitting H.R. Exper t Testimony

§4:30 Expert’s Testimony Expands Jurors’ Understanding

§4:31 Expert’s Opinion Supports Facts Leading to Legal Conclusion

4. Is H.R. Expert’s Testimony Reliable?

§4:32 “Reliability” Is Exacting Standard

§4:33 Challenge re: Expert’s Methodology

§4:34 Challenge re: Lack of Scientif‌ic Standards

5. Danger of Unfair Prejudice?

§4:35 Jurors Place High Value on Expert Testimony

§4:36 “Ultimate Issue” Testimony More Prejudicial Than Probative

[§§4:37 – 4:39 Reserved]

III. DEPOSITION OUTLINE

A. Questions Common to All Cases

§4:40 Education, Background, H.R. Training

§4:41 Past Employment

§4:42 Current Employment

§4:43 Publications

§4:44 Experience as Expert Witness

§4:45 Retention in This Case

§4:46 Nature of Assignment in This Case

§4:47 Expert’s Opinions

§4:48 Wrap Up

B. Sexual Harassment and Stereotyping

§4:49 Sexual Harassment

§4:50 Sexual Stereotyping

C. Failure to Promote and Gender Stereotyping

§4:51 Overview

§4:52 Deposition Outline

[§§4:53 – 4:54 Reserved]

IV. TRIAL EXAMINATIONS

A. Direct Examination—Sex Harassment Case

§4:55 Key Facts

§4:56 Strategy

§4:57 Checklist

§4:58 Model Direct Examination

§4:58.1 Establish Expert ’s Credentials

§4:58.2 Establish Scope of Assignment and Documents Reviewed

§4:58.3 Educate Jury as to Purpose and Benef‌its of Written Policy

§4:58.4 Bolster Credibility by Praising Employer’s Written Anti-Harassment Policies

§4:58.5 Explain Key Components of Proper Sexual Harassment Investigation

§4:58.6 Expert ’s Opinion: Employer Did Not Conduct Reasonable Investigation

§4:58.7 Expert ’s Opinion: Poor Investigation Lead Employer to Wrong

Conclusion re: Harassment

§4:58.8 Undermine Ellerth/Faragher Defense

[§4:59 Reserved]

D&E: HUMAN

RESOURCES EXPERT

4-3 Deposing & Examining the Human Resources Expert

B. Cross-Examination—Sex Harassment Case

§4:60 Key Facts

§4:61 Strategy

§4:62 Angles of Attack

§4:63 Model Cross-Examination

§4:63.1 Cast Doubt on Expert ’s Credentials

§4:63.2 Challenge Source of Expert’s Information

§4:63.3 Challenge Opinion as Based on Incomplete Information

§4:63.4 Expert Did Not Write First Draft of His Report

§4:63.5 Expert Did Not Keep Complete Record of His Work

§4:63.6 Point Out Errors in Expert’s Report

§4:63.7 Obtain Concessions: Employer’s Investigation Meets All Criteria Expert

Established for a “Reasonable” Investigation

§4:63.8 Expert ’s Other Criticisms of Investigation Not Valid

§4:63.9 Failure to Explore Alleged Harasser’s Conduct at Prior Employer Not

Fatal to Investigation

§4:63.10 Expert Ignored Evidence and Boxed Himself in With “Limited” Assignment

§4:63.11 Obtain Concession: Underlying Facts May Not Rise to

Level of Sexual Harassment

§4:63.12 Obtain Concession: Alleged Harassment May Not Have Been

Unwelcome or Offensive Conduct to Plaintiff

§4:63.13 Repeat Favorable Testimony From Direct: Employer Had Exceptional

Anti-Harassment Policy

§4:63.14 Human Resources Is a “Soft” Science

[§4:64 Reserved]

V. SUMMARY CHECKLIST

§4:65 Summary Checklist—Human Resources Expert

FORMS

4-A Motion to Exclude Human Resources Expert Testimony at Summary Judgment

4-B Response to Motion to Exclude Human Resources Expert Testimony at Summary Judgment

4-C Reply to Response to Motion to Exclude Human Resources Expert Testimony at Summary Judgment

4-D Motion in Limine to Disqualify Expert Witnesses in ADA Failure to Hire Case (Diabetes) Based on Lack of

Experience and Scientif‌ic Knowledge

4-E Motion to Exclude Human Resources Expert