Civil Litigation Process For Sexual Harassment

CIVIL LITIGATION PROCESS

Question:

You are a corporate vice president of a large software development & manufacturing company. Specifically, you are in charge of the company's human resources division. One of your responsibilities is to work with the company's retained law firm on suits against the company by present and former employees. A former employee has just filed suit against the company and one of its supervisor's for sexual harassment. The citation has been served upon the authorized agent for the company today. You have also been advised today that you are going to be promoted to senior vice president in charge of software development and that the new human resources director has little experience with matters related to civil litigation. You must orient the new director to the mechanics of how a civil lawsuit works its way through the legal system so that she can integrate her activities with that of the law firm in defense of the newly filed suit

Prepare a three (3) to five (5) page memo to the new director generally describing the litigation process.

To: X Liu Chang, Manager, HR department

From: Phuong Tonnu, Vice President

Date: 10/7/04

Subject: Litigation process for recent lawsuit of sexual harassment

Over view

The following document is a description of sexual harassment litigation process and my proposals to create a manual policy on sexual harassment cases.

The Stages of Sexual Harassment Litigation

1. Beginning of Controversy and Attempts to Resolve Conflict

"Having an litigation goal''

The goal of the case should be determined as early as possible, by the facts, witnesses, forum and client, because it will dictate how you will manage the litigation. For instance, if the forum, facts and client indicate that (1) summary judgment is not possibility and (2) the case will not be tried, then the goal likely will be to lower the plaintiff's expectations of the prevailing at trial through discovery. In these cases, you will likely propound extensive discovery requests and conduct your ''trial cross-examination'' of the plaintiff during her deposition to expose every weakness in the plaintiff's case. However, is summary judgment is not possible but a trial is probable, you likely will want to set up the plaintiff for damaging cross examination at trial during her deposition. If you believe the plaintiff's case is totally frivolous and the goal is to get attorneys' fees then you must begin to build a record very early on with the plaintiff attorney - warning him in numerous letters that you believe his case has absolutely no basis in law or fact and that you plan to seek attorney fees.

The goal of litigation initially is to pursue a lawsuit and settle out of court. If both parties can reach a settlement, there is money saved from not enduring a trial. But since there is no way to know if a case will go to trial or settle, the process involved in litigation must proceed as if there will be a trial. All pretrial preparation must be made prior to the trial date.

2. Pleading Stage

Responsive pleadings. Once the complaint is filed, the defense (WE) has to respond. We can file an answer in which it admit what plaintiff claims but also raise certain legal defenses such as the complaint was filed too late (called the "statute of limitations"). This kind of defense is called affirmative defense. Or else, we could also deny the allegation and set forth our own claim that the incidence occurred as a result of the plaintiff's action (dressed casually and provoking at work) (called counterclaim). The complaint and the answer (together called the pleadings) frame the dispute between the parties.

Pretrial motions. On the other hand, we can file a motion arguing that the court should dismiss the case on a legal ground. Normally motions are decided by the court on the basis of the papers filed by the parties and do not involve witnesses (though they may require affidavits or declarations). There are many legal grounds for filing motions. The most common motion is for summary judgment. Such a motion asserts that there are no disputed issues of material fact and that, given the law, the case can be decided by the judge without a trial on the facts. The defendant may make such a motion where a legal rule bars plaintiff's case or where the evidence is deficient in some critical respect. The motion will be denied if the judge rejects the legal argument or finds that the outcome depends on disputed facts that require a trial for decision. Motions for summary judgment are more commonly made by defendants, but they are available to plaintiffs as well. Another motion is motion or judgment on the pleadings. It can be filed once the pleadings are closed, with no further disputing. This will happen if the law needs to be applied to undisputed facts and the case need not proceed to trial. If any facts are in dispute the motion will not be granted. The motion to strike can also be filed by a defendant in asking the court to strike or delete certain paragraphs of the complaint. When these motions are filed they can help narrow down the issue involved and expedite litigation. A motion to make more definite and certain is one filed by the defendant asking the plaintiff to clarify the basis of the plaintiff's cause of action. This will occur if the complaint seems to be ambiguous.

3. Discovery Stage

Quoted from CASE expert handbook version 2.0: ''A major part of the pretrial process consists of discovery, i.e., the process by which the opposing parties obtain information from each other. Discovery is conducted in a variety of ways: by interrogatories (written questions calling for written answers); requests for the production of documents (enabling the requesting party to inspect the desired documents); and depositions (pretrial examination of parties or witnesses). Discovery is important in the American legal system for several reasons. First, in order to be advocates for their clients, lawyers need to prepare for trial by access to information that is relevant to the issues in dispute. When this information