Welcome to the CLE class on Proving Emotional Distress Damages in a Discrimination Case. This is the topic that you need to be taking today throughout the United States. If you haven't been paying attention to the news, discrimination is everywhere. In fact, the U.S. Supreme Court is hearing discrimination cases right now. Yeah, I know, yeah, I know that we're talking about First Amendment when we're dealing with the U.S. Supreme Court, but it really was about a Colorado case that's before the U.S. Supreme Court in the 2022 term. They just heard it. They heard it on a public accommodation law. A public accommodation law. You see discrimination when we're dealing in education, in employment, in real estate like public accommodation, not just housing. Discrimination is the type of topic that you might hear Supreme Court Justice saying, "Are we reeducating people? Are we making them take a reeducation course," just to quote one of our recent Supreme Court Justices' oral arguments. But is it really re-education or is it like the ACLU attorney would have? You know that this is more of a topic of understanding what the law is. Let's shift topics for a second. What I'm more interested in, not what the law is, but what's the risk assessment of not knowing the law. You see, you go to the barbecue, they give you the hotdog. It's delicious. By the way, sauerkraut on it, obviously. Some of you silly people go straight to the mustard, but you need the sauerkraut. You're at this entire barbecue, and your friend says to you, "What do you think about what they're doing with this?" Everyone's got an opinion about discrimination these days. You talk about the bathrooms when you're dealing with transgender. We hear Don't Say Gay going on in Florida. Setting that all aside, we just have people that get discriminated using the N word at work, or children, children, they have children, children, mothers, new mothers and fathers taking paternity and maternity, and doubts. It's everywhere. But again, what I'm most interested in is not who's right, but what's the risk assessment of being wrong. You see, what's most interesting about discrimination law to me is what's called emotional distress damages. Throughout the United States, most places you're not going to be able to get emotional distress in most cases. A contract case, you're not gonna get emotional distress. A negligence case, yup, you could get negligent infliction of emotional distress, and yes, certain states have made it more available than if there was a corresponding physical ailment. And yes, there's intentional infliction of emotional distress, but these causes of action are hard to get. Where you see emotional distress be automatic though is most discrimination cases. Now, I did teach another course that you all should take through Quimbee that was about what changed in Title IX and Title VI through the Supreme Court with respect to emotional distress damages, how it's not available, emotional distress damages, when we're dealing with a spending clause statute on the federal level. That all being said, Title VII, Title VII, we all know Title VII of the Civil Rights Act, Title VII is employment discrimination. Emotional distress damages are available there. Let's not forget the Fair Housing Act, federal case, federal statute, emotional distress damages are available there. Then there's state laws, whether it'd be New York, my home state, although I do practice in Colorado and Connecticut and my partner does New Jersey, they all have availabilities to be able to get to emotional distress damages. So this class is gonna go into the unknown. Why do I like emotional distress damages? Because twofold, number one, number one, people have real, real tangible, experiential adverse results from discrimination. There's actually public health data that shows that it can lead to all sorts of adverse physical ailments, and we're gonna go into that in this class. By the way, why am I so interested in this? And there's a second reason, but I said public health data. If you notice after my name, it says Andrew Lieb, Esquire, MPH. I have a Master's in Public Health and I'm most interested in the correlation, the connection, between how legal issues emerge and how it affects our public health, and there's no greater topic of that interrelation between discrimination and public health. You could read more about me on my bio. I've been on TV, you name it, ABC, Fox, CBS, Pix, LiveNowFox, News 12, Newsy, News Nation, Newsmax. I've been on a lot of channels. Check me out. I'm all over TV, all over media, in Newsweek, on Newsday, in the New York Times, I don't know. I've done this a few times. And why I do this in talking about the news is the headlines, and this goes to my second reason. The first reason was I'm interested in the interrelation of a law and how it affects the public health, and people have real tangible results, and emotional distress compensates them, gives compensatory damages for these real public health effects. For the secondary reason why I'm interested in is I like business and I like cost benefit analysis. And I like to know that even if I think I'm right, it pays to be wrong sometimes, and the headlines tell me that. We see that Tesla, we all heard of Tesla, their racial discrimination award was slashed, it means cut down, to $15 million. $15 million for racial discrimination. I'll give you another one. $70 million verdict against a Texas company employment discrimination. Oh, let's get bigger. A jury awards over 125 million in EEOC, Equal Employment Opportunity Commission, disability discrimination case against Walmart. We could see as low as just 10 million in punitive damages to former executive in a reverse discrimination. Reverse discrimination usually means the majority person is discriminated. Think about a Caucasian being discriminated. Anyway, these numbers are off the charts and I say to myself, "This is the most polarizing, electric topic in our day today between Republicans and Democrats." The debate rolls on. I read it in the news, I hear about it when I'm having that hotdog in the barbecue, and people are having real tangible effects, and these real tangible effects are getting awards of real tangible money. Here's what we're gonna talk about today, our topics. I'm gonna start off with different categories of remedies available in a discrimination case. That's topic number one. Different categories of remedies available in a discrimination case is gonna tell you about all the different remedies that are available in a discrimination case. It's gonna, yes, talk about emotional distress damages, but tell you all the other ones as well so you can have a spectrum, a smorgasbord for lack of a better term. Food is everything to me, if you haven't paid attention, maybe a pu pu platter. And we're gonna talk about all the different remedies available so you can have a checklist of the things you should be thinking about, whether you're plaintiff's counsel or a defense counsel. Then, we're gonna get into a more succinct, exacting topic. Look at this as the first topic that's breaking down the different categories of remedies available in a discrimination case. Look at that as your survey course if it was college, I know it's an hour course, but then we're gonna go to a 200-level each time we go to different level course. Breaking down different aspects of emotional distress damages. I'm gonna show you how to think about it. Is emotional distress just mean, "I'm sad. Boohoo," or are there real effects, real effects in emotional distress? And by the way, how much are those worth and why are they worth those numbers and how do I know they're worth those numbers? And is this predictable, or is this just throwing a dart at the wall? Let's get into that in the second topic or second level of this course. The third level, this is where the boys become men, boys to men for lack of a better term, it's your ABC, teaching your client to articulate and make records of distress. If you don't use HIPAA authorizations, you are a fool. If you don't teach your client with surveys on how to articulate what's impacting them for what's called garden-variety emotional distress testimony, you are a fool. We're gonna teach you what we do in our law firm at Lieb at Law, P.C. to really help our clients articulate the evidence. You can never have your client commit perjury. You can't suborn perjury, that's a no-no, but you can help your client articulate their experience, and there's two ways that we're gonna help them articulate. Way number one, we're gonna give them all the different words, kinda like they were taking a survey, a social science survey, a public health survey, to explain how they're feeling. You ever speak to someone who's stoic? They call that a sturdy oak in public health. It's the traditional male role, if we were gonna go into gender roles. The sturdy oak, and they can't tell their feelings. But you're sitting there and they're married, let's assume. I'm just guessing they're married in this story. And in the illustration, the spouse, the sturdy oak male role, we have the female, the wife, and I'm not saying that's the normative behavior. I'm just saying for my illustrative purpose, that's what's going on. The wife packs up, "He don't sleep anymore. He's not eating my pasta." You see, we have to teach him to articulate for himself or her, to articulate for herself, or they or however the person wants to be identified to articulate, and the records and what the records do. Then, we're gonna finally go into the highest level of this, and that's gonna talk about expert disclosure, expert witnesses, what a expert witness is, when you need to make a disclosure, the difference between federal, and to illustrate New York, I don't know if you go back to law school, but we know we talk about states, usually they pick Texas, California, or New York. As I'm a New York practitioner, we're gonna use New York as our example to contrast to the federal law just to show you there could be state differences. Let's start off in category number one, different categories of damages available in a discrimination case. We're here in two levels of damages, to start off with. You have two levels of damages. You have your pecuniary and your non-pecuniary. I don't know why in law we have to use silly terms. Like, I've never been at the barbecue where someone said, "How's your pecuniary damages going?" But as lawyers, we gotta use these things. Pecuniary just means in my estimation, what is measurable and happened, and we can prove. Now, when you're dealing with a housing issue, and I say something like back-pay, there is no back-pay, there is no front-pay, there is no loss of benefits. But in housing, your pecuniary damages, if it's housing discrimination, it could be your cost of your housing search, brokerage fees. It could also be your alternative housing that you needed in an interim, whether you had to live in a hotel or otherwise or pay above market instead of what you otherwise would be having. But really, when we talk about the pecuniary damage, the biggest thing as a practitioner we should be concerned about, the biggest category, no, it's not education, although in education, again, no back-pay, front-pay, lost benefits, but you could have that they have to take alternative education providers and the cost of tutoring and the cost of different schooling. But really, the biggest category is when we're dealing with employment. With employment, we see back-pay and front-pay, and those are big deals. Back-pay is how much they lost while they were working and they couldn't work anymore, and front-pay is assuming they couldn't get another job or there was no way to get another job or someone else who's a third-party that's not the perpetrator would lose their job to give them the job. Front-pay is an estimation of how much into the future, how many years they would've worked versus how much money they lost per year. These are tangible big numbers. And don't forget the lost benefits. We're talking about health, vacation, sick leave, pension, make that category going. That's big in employment. But we have, again, employment, you have job search, medical expenses. These are the numbers you should be getting on your initial meeting with your client. We like to do this at least if you're plaintiffs, and we do both plaintiff and defense work in all three categories of discrimination. And when I say all three categories, we go beyond education, real estate, and employment to places like we would consider whistle-blowing to be in discrimination. In New York, you have that under Labor Law 740, 741 and under Labor Law 250, but that's another story for another day. But when you're dealing with this, when you're dealing with this, in employment, you should be saying to them, if you're doing plaintiff at the outset, you should be saying, "I need an authorization sign from you so I can send it to your employer, so I can get all the information about all the data." They may not give it to you. Why they may not give it to you? Because I imagine your first move when you get a plaintiff's case is to send a preservation notice so you can get spoliation ruling if they lose all the records and to tell them to speak to their EPLI policy and notify their insurance so they're not denied coverage from not being known and asking for demand, et cetera, et cetera. Those numbers are tangible. You can add them, you can get an Excel. Please don't use a calculator. You can get an Excel and put them together, and you should. And assuming they don't give you the numbers when you give your workplace authorization form and have it signed by your client and make that demand, you'll get them in discovery. But what's more interesting is the non-pecuniary damages, emotional distress, mental anguish, inconvenience, loss of enjoyment of life. That's what we're gonna be focusing on in today's course. So I'm just gonna skip over for now and we'll get back there. But let's be clear, there's other things you can get too. In a discrimination case, there's punitive damages available. Mind you, when I say a discrimination case, I've pointed out before that when it's a spending clause discrimination case, you can no longer get emotional distress. You also can't get punitive damages. That all being said, when you're dealing with Title VII or the Fair Housing Act, you certainly can, and state law allows you to do it. Punitive damage is punishment damages, when you're seeing malicious and reckless acts. And I always believe as a boxer, you can't hit the face, you have to punch through the face. So if you're kind of sort of in a non-frivolous capacity can allege punitive damages, though not alleged punitive damages is idiotic. Let's not forget liquidated damages. Liquidated damages, certain statutes allow you get two to three times the damages of the liquidated fee and you should be searching your statutes to make sure you can get that. We go on and you get attorney's fees, expert witness fees. Did you know a lot of the statutes provide? You can have your experts paid for as part of the damages. We always like to say when we're plaintiffs, and again, we do defense too, so you have to be mindful of these when you're talking about it, when you're, let's assume you're working for a big company, which we do, we represent some publicly traded companies, and let's assume that they're asking about this discrimination case are write up of the case, puts in the fact that the attorney's fees, the expert witness fees, and the fee shifting that deviates from the American rule when it comes to discrimination, which makes this field very, very interesting. Gotta check your statutes, know what's available. And when you're picking your forum, whether you're gonna go to federal court, state court, federal administrative, state administrative, you have to see which ones you get, where you go, which juries you get, and why you wanna do it in that fashion. But that's not the end of the list of remedies. You can also get costs. There's statutory damages, these fines that you can get when, let's assume, EEOC goes after or New York State Division of Human Rights or New York City Commission of Human Rights, you gotta check those. But yet that is not all. In a discrimination case, there could be reinstatements to a job, there could be implementing a reasonable accommodation or a modification. The differentiation is that an accommodation means a change to the policies, their procedures, where the modification means a change to the structure. There could be a removal of persons, and I always love when they remove the victim instead of removing the perpetrator. That's always a good way to lose a discrimination case for retaliation. Oh, by the way, you could sue for retaliation. Even if you lose the original case on the marriage, there was no difference terms or conditions based on the discriminatory event, but there was retaliation. There could be required trainings or policies and procedures that have to be implemented. And oftentimes we find required trainings to be a necessary, a necessary component on both the plaintiff and defense side because the goal is to not be here again and teach people. As I said on TV this week when we were going after, we were discussing, the Supreme Court and the Justice who made a re-education comment about required trainings, I said, "It's not about teaching people to think differently. It's teaching people to understand what laws can create what damages for them. And getting educated on the law is not a re-education program, it's teaching people to know the laws in front of them." A part of public health, which is what I go back to, is first you have to tell someone what the effects, for example, an illustration and analogy of eating bad food is before you talk about the behavior change of which food you want to eat. Setting that all aside, you can have a order of TRO halting a discriminatory action. There are so many different types of remedies as you can see. You might be exhausted already, and we're not even 20 minutes in. Think about those remedies that are available. But guess what, in federal cases, now, this cap doesn't apply to non-federal cause of action, but in federal cases, there's a cap. There's a cap on the amount of damages, and the cap changes based on the amount of employees, not ICs, independent contractors, but employees. And by the way, it's not employees currently. It's within a certain amount of time. Read section 1981a, you'll get there. But it showed you between 15 and 100 employees, there's a cap of 50,000, between 101 and 200 employees, the cap of 100,000, between 201 and 500 employees, there's 200,000, more than 500 employees, the cap's 300,000. Read 1981 if you're only pursuing a federal case. But I would share with you that we at our law firm never pursue only a federal case. Sometimes we pursue only a state case, but the general rule, if the federal floor is the... The federal law is the floor under which states and localities cannot drop. Meaning that the local law, whether it's a city law, a town law, a village law, a county law, or better yet just a state law, is always gonna give more protections, more relief than this federal law. So the real advantage of being in federal court is gonna be, from my perspective, the emotional distress damages are cleaner and the attorney's fees are generally better and you can potentially get a different jury pool, et cetera, et cetera. And if you're a federal practitioner, there's advantages. Oh, and by the way, when we get hired in our law firm, and we're not in New Jersey, New York, Connecticut, or Colorado where our attorneys are licensed and let's say it's Iowa, we could pro hac into there and do a federal case, but you can't do that in a state case. So these are considerations that need to be undertaken when you're talking about it. But the point being, section 1981a, the federal cap on cumulative damages, it only applies to the federal cause of action. Oh, and by the way, it doesn't apply to lost pay. That's that back-pay thing, front-pay. It doesn't apply to attorneys' fees, expert fees, and costs. It doesn't apply to state court relief. In fact, if you were gonna read 1981a, you would see that the cap only applies to future pecuniary losses, emotional pain, so that's the front-pay. It applies to future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses, and the amount of punitive damages awarded under this section. So to go back again, 1981 is gonna limit our emotional distress where you're only gonna get up to 50,000 if we're talking about a 15 to 100-employee shop. Mind you, why isn't it under 15 employees? Well, to go to Title VII, the EEOC, you need to have 15 or more employees to be able to qualify in the first place. But you'll find that certain states like New York in certain causes of action, provide one employees enough to bring the case. So you gotta check your corollary state laws. Anyway, let's move from that entry, that 100 level, that survey to the 200 level of breaking down different aspects of emotional distress damages. The real question, assuming we can get out of the cap or we wanna reach the max of the cap, how much is this case worth? I'm gonna show you the most important, the most important, the most important law journal article, the most important article you need to read, print, review, study on plaintiff for defendant's side, particularly if you're working in the Second Circuit because they adopted this when it comes to emotional distress damage. It's called Evaluating Emotional Distress Damage Awards to Promote Settlement of Employment Discrimination Claims in the Second Circuit. It's repeatedly cited by the courts. You can find it at 65 Brook. L.Rev. 393. It's in section 427 to 28 when we talk about garden-variety, significant, and egregious. Again, those are the three categories, garden-variety, significant/substantial, or egregious. And this article on the courts that adopted have really said there's three types of emotional distress damage. If you see it's not throwing a dart at the wall, it's taking the abstract and making it succinct. And through deduction analysis, understanding the emotional distress damage that your client, the plaintiff, has or your adversary of the plaintiff has if your defense counsel so you can pigeonhole them to the right one. Garden-variety, significant/substantial, or egregious. Garden-variety is the basic, it's the low-end of the emotional distress spectrum. The low-end is still something. We're gonna go into the something and what it is and what the numbers are. But what we really wanna know is to get this, the plaintiff has to give testimony. That's the primary evidence. And it could be vague and it could be conclusory and it might not include severity or the consequences, it's just the plaintiff testifying, but even that is worth money. And what I'm gonna show you in a few minutes is there's a range of how much money that's worth according to the courts, and we know that when we see appellate cases trying to overturn the damages, we know that when a judge sets aside the verdict for the damages and resets the damages. We know what they are because this article did a survey of all the damages. What I'm interested though is if I'm on the plaintiff's side on the spectrum, which we're gonna talk about in a little while, how do we go to the highest end of the spectrum, and if I'm a defendant, how do we get to the lowest end of the spectrum, And I wanna show you that and show you how to get there. But let's show you first, I told you, garden-variety emotional distress is the lowest. Then the middle one, the one that we're really shooting for for a plaintiff's attorney, and this is where good lawyers are better than bad lawyers, is helping them get to not only the next level of significant/substantial emotional distress, but the high-end of there. This is the middle-end of emotional distress damages. There's more substantial harm, long-term psychological harm, the conduct's more offensive, and the duration of the conduct happen more. The key though is that there's an expert witness, and we'll talk about a treating physician kind of sort of being a expert witness, but not exactly, but that will still get you there. A medical, psychological or therapist, social worker might be your expert. An emotional distress doesn't necessarily have to be a psychiatrist but prescribing, although what I want you to know is that medication treatment really gets you to significant substantial. But do you need medication? No. You can also have talk therapy. The key is, is there a corroborating witness? That's the real test. Do we have a corroborating witness of this emotional distress or is it just the plaintiff saying, "Bad things happen to me"? Now the question becomes, I'm gonna echo this later, how do you get your client to have a corroborating witness? And I will say, as a plaintiff's attorney, I never want to tell my client, "You need to go see a therapist so you can get more money." Why? Just they have thought. It's a bad look. They get questioned, and I know you are gonna object on attorney-client privilege, but they're gonna say, "How'd you find out about this doctor?" "My attorney told me so." Like, it's just a bad thing to do. And you don't wanna steer your clients to experts ever if you're plaintiff's attorney. Why? Because even if you don't have that attorney-client privilege issue, assuming you're able to object and get it blocked, which you should, if you're not a dumbing, and let's assume that they get out, if you use the same doctor or therapist or psychologist over and over and over again, that comes up in a cross examination of your experts. So be very careful about steering your clients. But we're gonna show you in this matter, in this CLE, how you should be getting them to you as a corroborating witness if you're a plaintiff's attorney. And if you're not doing this, maybe you shouldn't be a plaintiff's attorney in this field because other people are and you're doing a disservice to your client. But I will give you a tip, just don't pass go. Don't collect $200, you sign the retainer, you're a plaintiff's attorney. You should be giving them HIPAA authorizations on the first day. And that's not telling them to see a doctor, that's saying, "You see a doctor and if you do, you need to tell us and sign these authorizations so we can get your medicals." Now, I will point out to you that once you make emotional distress damages part of your claim, that makes your health record discoverable. So if your client doesn't want things coming out in court... Well, by the way, you can do this administratively so it doesn't come out in court, a consideration to happen, and those aren't necessarily public records. But let's assume you're in court, and your client doesn't want it to come out and you're in court for whatever which reason. And there are advantages to going to court, sometimes "administrative" particularly because you can get injunctive relief, temporary restraining order in court, whereas in administrative, they gotta go through the case. There's no TRO application. But let's assume you're in court, and your client doesn't want their medical history to come out, don't plead emotional distress. You're opening the door. So the first category again was garden-variety, the middle category, significant/substantial emotional distress, the high-end category, egregious emotional distress. This is the most, but this is more like punitive damages. I would actually argue that's a compound of punitive damages. You get both emotional distress more if it's outrageous and shocking and you get punitive damages. It's like how courts like to cap the amount of punitive damages, and I'm not talking about the cap from the federal statute where they cap it between the amount of employees and the cap. I'm talking courts like to see no more than two to three times punitive damages, generally assuming there's not a statutory cap. Sometimes it says that you can get a max of 20K as a punitive damages in a statute when we're dealing with discrimination law. But you need to know about the fact that even if there's a cap there, there may not be a cap when we're talking about emotional distress. So you're gonna get it through outrageous and shocking conduct, which is a redundancy, a double dip, a great damage of getting punitive and more emotional distress. But really, where you're gonna get it is that treating doctor, that corroboration, showing that you had your physical health significantly affected, and I referenced that before. And there's great articles in the public health arena which you should become familiar with, which talk about what you should be doing with respect to understanding how stress... Stress is the word that you get from emotional distress. It's in there, distress, stress. It's easy to remember. Stress causes physical ailments, and what you have to show is that there's a correlation, a causation, not a correlation. A correlation just means two events happen, but a causation between the stress and the corresponding physical health. Anyway, let's get to the part you really want to know about. This is the slide, I want you to know, that you're gonna start to wanna know about where we're gonna get much more detail. What are they worth? Isn't what the question was? Here's a 2018 case from SDNY, which is Southern District of New York Federal Court, that says garden-variety is 30,000 to 125,000 in emotional distress damages. That's a big range. That's a $95,000 range. You better be helping your client get to one side or the other based on you knowing what you're talking about. Significant/substantial, 100,000 to 500,000. Wow, that's a difference. That's the difference between bad lawyering and good lawyering, and why bringing in a co-counsel might be important if you don't know how to do this because it's paying for themselves. If they get a third of your third, let's assuming that's what's going on, although I will say that you could just allocate the award of attorney's fees, there's ways to do this in different things, but if they bring your damages from 100 to 500, wow, what a difference. And egregious, we're breaking that 500K. We're closer to the million than the half million. Wow. That's a case from 2018 Duarte v. St. Barnabas Hospital. But how do we know these numbers? Here's how we know. Duarte was from 2018, but it cites to a case from 2005 from EDNY, Eastern District of New York, and that case is Rainone v. Potter at 388 F.Supp.2d.120. And that case, 19 years earlier, that case, Rainone cites to the article, Evaluating Emotional Distress Damage Awards to Promote Settlement of Employment Discrimination Claims in the Second Circuit. The article that I'm requiring you to read. That's a 19-year swing though, and we're not in 2018 anymore. I wonder what the damages were in the article, in 1999. Let's give you some comparisons. When the article was out, it was, wow, interesting, the article says that the damages for garden-variety are 5,000 to 35,000. Then, Duarte says the damages are 30,000 to 125,000. That's a big jump. We're going up 25,000 and 90,000 between 1999 and 2018. Mind you, it's 19 years, but that's a big jump. Significant/substantial. We went up from 50,000 to 100,000 in 19 years, or 100 to 500. Egregious, 100 to 500-plus. So the real question, what does this class do? Because you know, I didn't write the original article. It's a great article, I recommend you do it, but the real thing I did is I extrapolated for you. What does extrapolating mean? I said, "I wonder how much a year it went up since the article to Duarte in that 19 years from 5 to 30." I said, "I wonder how we get to that higher number." I'll tell you what I did. I said, "We're now about to be in 2023. We should do this for 2024 too. How much is it going to be worth in 2023 if we're doing a case now with 2023? We need to know." This is the most important slide if you wanna get a takeaway, so you can understand what damages in emotional distress in federal courts, mainly the second circuit, but we can extrapolate out from there our work today. Garden-variety is gonna be 36,579 to 148,684. Significant or substantial is gonna be 113,158 to 605,263. And egregious is gonna be more than 605,263. Wow. Those are huge numbers. And again, I want you to notice in each category how big the swing is between the numbers because soon, I'm gonna show you how to get from one to the other. But before I get there, I don't want you to take my word for it. Here's my math on how we got to the numbers for '23, how we extrapolate it. I show you the difference between the years. I show you the amount of years. I show you the increase per year. Why did I do the increase per year? Because you could extrapolate to 2024 and 2025 because I imagine that the CLE is gonna be kept being watched into the future. So you need to know into the future what the damages are and see yourself how to get there. This is the math slide. Phew. We just did two important topics. The first topic is what were the remedies available. The second topic is let's focus on emotional distress and show you what they're worth. And if you didn't pick up that those are real numbers yet, like I have a case going on, a class action going on where we're seeking cert on a discrimination case, and imagine those numbers being times 10, 20, 50, 500 plaintiffs. Think about how you get to these numbers from those headlines from the beginning. But again, what I think separates the boys from the men, from the girls from the ladies, that it's to the these, you're like, "Oh, I did that," that it's to the these, I think it's not just knowing that garden-variety is plaintiff testifying not with conclusory testimony, and significant and substantial as having corroboration, and to go even further, we're gonna have to be like punitive damages. Not even to know that about your three categories. It's about how you get the range in the middle. How do you get to the top-end of the range as opposed to the bottom of the range? This is where the lawyering is not just about being the courtroom trial attorney. In my firm, we have a courtroom trial attorney, and we do great in the courtroom. That all being said, winning a plaintiff's case particularly, and defense too because you need to know what you're asking for when you're doing your discovery and be getting the details and getting the records and showing them and making them sign what's called Jackson Affidavits, that they don't have the records that you're looking for to be able to lock them into where they are. It starts on day one, where we're teaching in the next topic your client to articulate and make records of the distress. These are the terms you wanna see if you want to get into the high, high, high numbers, that second half of the half million. You wanna see post-traumatic stress disorder, short-term adjustment disorder, depression, panic disorder, hospitalization. You should be taking a list of my terms. You should be using my terms. Did you know in my law firm, we have a online form that clients fill out monthly to get alert, an automated alert every month where they have to take a survey like it's a public health data, and they fill out this form every month with these questions and these terms. There's a lot more. I'm not giving you away the whole chop, but we're gonna be showing you that we make Slurpees, but we're not gonna show you all the different ingredients in the Slurpee because you gotta come work here if you wanna do that or work with us. But it ask you questions to help clients articulate what they're feeling from day one. Are they having humiliation, embarrassment, loss of self-confidence, loss of self-esteem, shock, sleeplessness, insomnia, nightmares, headaches, stomach pain, nausea? Stress discrimination, emotional distress, it manifests itself so many different ways to so many different people. And if you just leave a blank, how is this affecting you? I'm aggravated, I'm stressed. That's not gonna get you to the higher end. Can they say things like I have anxiety, panic, dread, fear, loss of appetite, hives, loss of hair, like I tell my kids all the time, hair growth, you get hair grown in weird places sometimes when you have to trust people. What about being on edge, clammy, socially reclusive, little desire to socialize? I have a client in a mega case that's been all over the news, and when she talks, this client, when she's stressed, she loses her voice. That happens to about 10% of the population. You have to be worried about these things and asking about these things because if you don't know these things, you're not gonna be able to prove your damages. People have excessive sweating, highs and lows, they're erratic. What about short-temperedness? Being sad, hurt, shocked, upset. Did they cry? Purposeless. There's a concern about the future. There's no point. Clammy, nervous. What about deteriorating relationships? How's this affecting their life overall? Weight gain, chest pain, shortness of breath. Are they getting skin blemishes? Suicidal thoughts or acts? That's a big one. Nightmares, flashbacks. Beyond the direct things they're explaining, and you should be asking them whether you're using an old school survey or you're just interviewing them with scratching on your legal pad, or you, like my firm, you have everything automated and regimented and having professional surveys done so they can keep being reminded every month, and create a record because they may not remember three years from now when they're on trial what they told you three years earlier that they were feeling and they might generalize them all together, so it might be good to have a cross reference. Have you thought about, not only what directly they were experiencing, that clamminess, that tiredness, hair growth stuff, are you also thinking about, did it increase their participation in unhealthy behaviors? Are they smoking more? Are they drinking more? Are they taking substances, whether legal or illegal? Are they doing those? But it's not just what they're increasing in behavior because they're stressed. What about their decreasing in behavior? Are they doing less cancer screenings? Is their diabetes management out of control? What about condom uses with safe sex or unsafe sex? We need to think about not just the direct, not just the tangible, not just what they tell you some early and not what you will help them articulate, but the secondary effects of those things 'cause that's the difference between the low end and the high end. We're dealing with emotional distress damages in discrimination. But to get to the egregious emotional distress damages, the big numbers, beyond it shocking the conscious and beyond it being a punitive damages level thing, just on the damages affecting their physical health... Remember I said to you, if it affects the physical health, you could get there. I want you to remember that emotional distress has a word, stress, in it, and discrimination equals stress. In fact, one of my favorite things is on the New York City Commission of Human Rights website. I don't know if they still do, but they used to have a thing of it means loss of dignity, and that really gets you. But discrimination equals stress. Did you know that if you have stress, you get increased cortisol? That's a scientific thing. Speak to your healthcare providers that you're gonna be working with tandem on this case. Ask about it. Again, you can't suborn perjury, but you could help them articulate evidence and people that aren't prompted to do things don't do it. Did you know that increased cortisol results in depression, schizophrenia, heart disease, and metabolic syndrome? Did you know after the stress subsides, cortisol drops and it results in arthritis, rheumatoid arthritis, fibromyalgia, and allergic conditions? I give you an article, just go read it, I told you I do public health too, Perceived Discrimination and Health, A Meta-Analytic Review. Now, my father used to be my partner and he's retired now, but he used to say to me, "You got to find a study that says anything." Well, let me tell you, a meta-analysis means a study of studies. So if you're looking to be able to get concrete evidence in from an expert, if you're gonna go into this, maybe get the guy that wrote this article or gal that wrote this article or the they that wrote this article or an article like this. You want a meta-analysis because a meta-analysis says it's not an outlier, it's doing statistically significant, SPSS is what they generally use, correlations with respect to all the studies that show us this result. Do we know this to be true as a matter of science? This is where you get to the egregious. Anyway, it all starts by asking for that HIPAA authorization. You can't get medical records without a HIPAA authorization. And by the way, isn't that a good prompt to remind your client to go see a medical provider, healthcare provider, to see a social worker, a psychologist, a psychiatrist. Here's a sample form. If you go to the New York Court's website, they give you one. I'm sure if you Googled it elsewhere, you'd find it. And you say to yourself, "Yeah, but Lieb, you said you could testify. Lieb, you said you could testify. They could testify themselves. And why don't we just have them submit all these records that you're collecting this all time?" I wanna remind you that personal records are hearsay out of court statements offered for the truth of the matter asserted, and these diary entries are challenging to get in. I'm not telling you they're not getting, they're challenging. And you might be thinking to yourself, "Listen, I know the US Code at 1732 has business records and that's admissible if they're made in the regular routine in a habitual course of business, blah, blah, blah. In New York state, we have CPLR 4518, get in for the same thing." That all being said, personal records are not business records so it's gonna be a challenge to get them in. Sometimes you can get a personal record in to corroborate a claim of abuse or harassment sometimes, but it's a challenge to get them in. So I want you to be clear. So why are we getting these records? What's the point of them? Why are we working with our clients from the very beginning, giving them... We actually have a welcome letter that we go over with them after they hire, if they hire us on a plaintiff's case. And again, we flip all this stuff for the defense side. I just don't imagine that most of you that are taking this course are on the defense side, that's why I'm not focusing on it. Generally, you see someone's taking a course like this is gonna be doing a plaintiff's case. It's just what we say. So on the plaintiff's case, we start off by giving them a letter that explains all the damages, explains what's going on, and then we have a welcome letter online with all our forms that they click on and a reminder every month of them to do it. Why are we having them fill out these things every week, every month, every three weeks? And by the way, it varies because we also have a form for out-of-pocket expenses to be able to show pecuniary losses, blah, blah, blah. And by the way, all this stuff is subject to attorney-client privilege, so we don't have to provide any of it. The point is to focus on reflection. It forces reflection. It forces your client all the time, and I sometimes do it more often just so you know when it's someone who's scatterbrained, and I do it less often if it's someone who's very detailed when I'm meeting with them. The question becomes, are they able to reflect on what's occurring to them? Can they articulate it? Is it tangible? Because if they can't articulate it to you while you're meeting with them first of all, the first question you get, you sent a demand letter, you file a complaint, the first question you're gonna get from a defense counsel, at least this is what I would ask if I'm a defense counsel, is, I say to them, "What do you mean emotional distress? How are you gonna prove that? What happened?" Wouldn't it be great to give the list I just did? Tuesday at 3:00, I couldn't eat. I couldn't eat at 5:00. I couldn't eat the next day. And just go through it. I experienced 10 pounds of weight loss. Wouldn't that change your negotiations? At the end of the day, both plaintiffs and defendants in discrimination cases wanted talk settlement because of that fee shifting with attorney's fees. That's one reason to force their reflection. The second one, again, is to remind them about the HIPAA and everything else and the authorization so we can go get them to see someone to corroborate this information. Speaking of corroborating this information, let's talk about the fourth category here, the hardest part of this conversation, the one that really gets us from garden-variety to significant/substantial emotional distress damages, that corroboration, that selecting, that timing, and leveraging expert witness disclosures. I would argue this alone as why you may pick state or federal court because you're gonna see that there's much more strict deadlines when it comes to federal court with expert witness or state court. That all being said, who's an expert? We learn from this case, Jaffe v. Redmond, that an expert isn't just a MD or a DO, a psychiatrist. It could be a treating physician that's not just a psychiatrist. It could be a family doctor. Why? Because I told you there could be distress with the cortisol, the cortisol with the secondary health effects. We wanna understand what's going on. But you could have a psychologist be your expert. "But a psychologist can't treat with medicine, Andrew." Well, if you remember I told you talk therapy can get you there. In fact, a social worker can get you there. Interestingly enough, not on this topic, but when you deal with discrimination, when you're talking about reasonable accommodations and modifications, which I've put a few courses on myself on that one, reasonable accommodations and modifications, you have to show that someone has a qualifying disability and you have to show that they requested an accommodation or a modification. It's been shown that a social worker requesting emotional support animals or service animals can get you there. In fact, HUD has a sample letter from a social worker on their website when you're dealing with fair housing. Anyway, let's assume you got this expert. You gotta time the disclosure. You got the Federal Rules of Civil Procedure section 26 , just as a contrast, CPL 3101 . Let's assume we're dealing federal. Let's start with federal. Isn't the first question not, one, I gotta give the disclosure, but what do I gotta give? And I want you to know I've been an expert witness before on cases. We own a New York State licensed real estate school and I've done expert witness on that stuff. So I've written a disclosure myself before and you gotta make sure that the disclosure that's given pursuant to the Federal Rules of Civil Procedure or the civil practice laws and rules in New York, that it complies, otherwise your expert gets stricken, but you need to know what it is. Here's what you gotta have, a complete statement of all opinions the witness will express and the basis and reason for them. I think basis and reasons, sometimes we get experts struck in for because they don't give it. The facts or data considered by the witness informing them. Remember, it could be things like the meta-analysis we talked about before. Any exhibits that will be used to summarize or support them. This is something that's much more strict in federal court than in state court. The witnesses' qualifications, including a list of all publications authored in the previous 10 years. You better be having an associate if you have them. I have them. You better have an associate reading all those publications and being ready to impeach the expert if you're a defense. Or if you're a plaintiff in the defense, bring an expert, they always have one. A list of all other cases in which, during the previous four years, the witness testified as expert at trial or by deposition. Didn't I tell you all before that you don't want to keep using the same expert? This is a fight I have with clients a lot. They're like, "Don't you have an expert?" I'm like, "Don't use my expert. They're gonna impeach them. They're gonna be like..." because the next one says, a statement of the compensation to be paid for the study and testimony in this case. They'd be like, "How many times has Lieb used you?" They know because they have the disclosure. They're gonna say, "How much did he pay you?" Like, you can't keep using the same experts over and over and over again. There are exceptions to the rule, and the exception I would probably say is if we're dealing with like someone who did a meta-analysis and they're just testifying to their study, but even then you gotta be a little careful about it. In contrast, here's what New York State says. You have to identify each person whom the party expects to call as an expert witness at trial. All you gotta give them is a reasonable detail, the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which the expert is expected to testify, the qualifications of each expert witness, summary of the grounds for each expert's opinion. It's like basically nothing compared to the federal case. So if you want to use looser-gooser experts or not tell them as much about it, I would probably go to state court. Now, I will point out to you that in commercial division in New York, there's special rules in the New York Code of Rules and Regulation, and it gets a lot more like the expert disclosure in federal when you're dealing with a commercial division. I show with you here, but I want to give you the caveat before I read it out to you that a discrimination case shouldn't be in the commercial division because it's not a commercial case. It's not commercial between two different parties. But I wanted you to know that it's to be mindful of that certain judges are looking for a little more because they're used to this. A complete statement of all opinions the witness will express and the basis and the reasons for them, the data or other information considered by the witness in forming the opinions, any exhibits that will be used to summarize and support their opinions, the witness' qualifications including a list of all publications authored in the previous 10 years, a list of all other cases in which the witness testified as an expert at trial or by deposition during the previous four years, a statement of the compensation to be paid to the witness for the study and testimony in the case. Wow, strikingly like the Federal Rules of Civil Procedure, right? Now, I will tell you we're not in the commercial division if we go to state court and you have even less of a burden when you're dealing administratively in either division of human rights if you're in state. How we do it in Connecticut division, like, it depends. I think there's the commission in Connecticut, but you do it in Jersey. Like, they all have their own rules and you gotta read their administrative procedure acts because you better know the rules of the road where you're going. And one of your first considerations is, what's the story with my experts? Now that you know what you gotta give though, when do you gotta give it? According to Federal Rules of Civil Procedure, a party must make these disclosures at the times and in the sequence that the court orders. Fact them, court orders. Absent a stipulation or a court order, the disclosure must be made. So if there isn't one, at least 90 days before the date set for trial or for the case to be ready for trial. That is a real strict deadline. If the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party within 90 days after the other party's disclosure. Do you see how strong those deadlines are? They're gonna know what's happening, and there's much more disclosure in the federal case. I wanna give you a contrast though to the New York State case. In New York State, it just says you gotta give it upon request, but then it goes even loosey-goosier. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not there upon be precluded from introducing the expert's testimony at the trial solely on grounds of non-compliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, sua sponte, the court may make whatever order may be just. I want to show you that contrast there. It says upon good cause shown, but that says may be just, and we seem to see the case law being on more than "may be just" standard and they're more loosey-goosey as long as you're doing it. Now, I point out the rest of it is about medical, dental, or perio, podi, I can't even speak, podiatric malpractice. So we're not gonna go there for this case, but I want you to know the takeaway is federal disclosure is much more detailed, has strict deadlines, and you're gonna have to give it much sooner. So what do you do if you screw that up? What do you do when you go, "Oh shoot, I missed the deadline. I'm sloppy. I took Lieb's course. I was gonna go on trial in two weeks. So what do I do on federal case? What do I do? What do I do? What do I do?" Don't forget your treating physician. There's no disclosure required for testimony of facts and opinions. I wanna emphasize that part again. Not just facts, but opinions by a treating physician so long as they were formed during personal consultations. On the defense side, we call that an IME to be able to get them in, the independent medical examination. But this treating physician, the person who is evaluating your client, they can testify as to causation, severity, disability, permanency, and future impairments. I give you both, a EDNY, a federal case, and a New York State Second Department case. It's available in both federal and state. And this treating physician is an invaluable tool that you cannot forget, particularly for twofold. What's the two reason? Cheaper. They don't have to write the report. A report can cost you somewhere between 5,000 and $15,000, sometimes even more than that, depending on how much they have to review. They usually do it, a report is usually per an hour based on the amount of things they have to review and depending on different treatments in the past, et cetera, et cetera, et cetera on an expert. And there's usually fees. You should really negotiate these expert witness stuff, and also have rules about trials and adjournments and everything else. I don't need to go there right now. You gotta be mindful of your cost benefit analysis. And by the way, you have to, if you're a plaintiff, show it to the defendant of what you're paying for this stuff because it might spur a settlement before you agree to hire them. You should say, "Here's what they want, and I'm seeking expert windows damages so maybe you wanna settle down 'cause I'm gonna settle for a lot more next." So you want to know about the pricing, and it's gonna be cheaper because there's no report needed right now. But also, again, if you're missing a timing issue or it's a 11th hour decision, you could bring that treating physician in and that's an invaluable tool, an invaluable tool in your arsenal when you're going forward. The flip side though, once you make mental or emotional health at issue, and I mentioned this before, your client is waiving that doctor, psychotherapist patient privilege. That's from the SDNY, from a case called Sidor. That's so important because some of these people have skeletons in their closet, and you need to tell them that you are never, ever in 10 zillion years going to be able to get in to the damages you want of a corroborating witness unless that all comes in. And I have to tell you, even if you don't call the witness, they could be asking for HIPAA authorizations in the defense even if you were going with garden-variety the second you make mental or emotional health at issue. They can be asking for HIPAA authorizations in their discovery and they can be asking for the medical records once you make it into an issue. So it's not how far you push it, it's not how far you push it, it's instead whether you open the door in the first place. So at your initial consult, at your initial consult with your client, I strenuously suggest you have that heart-to-heart with them. Now, I probably wouldn't have that heart-to-heart as your entry level because that's a pretty terrible sale. "Hey, here's all these terrible things that happen to you, and they're gonna know about your trauma throughout all of life and how you're a victim of X, Y, Z. Or you're having this divorce or anything else and they're gonna know all about your life as soon as we do this case. Here's why you should be scared." But you may want to have that as an informed consent somewhere along the line, a way that your client can know and you could say, "I told you from the beginning," so when they freak out, when they have a conniption and they come after, you go, "Look, I told you. It's in writing. I told you this is what's gonna happen." Because, you know, imagine taking a case on discrimination and taking out this range that we're going in, in the $36,000 on the low-end all the way to over $500,000 of damages, assuming only one client as a witness from the beginning and not even going into having a significant or substantial damages, that's like going to war and saying, "Hey, we're not gonna use the Air Force or the Navy. We're just doing hand-to-hand combat." That would be a real limitation on me taking the case unless the client wants to pay me hourly if I'm going to be a plaintiff's attorney. It all comes down to case valuation is subjective. Who knows? I always started off my career. My father, who I said I was partners with, was a big PI guy, personal injury, and we went into Jury Verdict Reporter, and you can go into Jury Verdict Reporter for emotional distress too and you try and figure out what these things are worth. But it's not just what they're worth as far as what will be upheld on appeal or on a trial court on a verdict. What's gonna be upheld is what they're being worth. They're worth what you are gonna put in the work to be able to help your client articulate the facts, to help them get to where you need to go. Because if you don't help them articulate the facts and get the proper authorizations and you don't know what you're talking about, you're missing the entire case. You have to help your client get in touch with their feelings. Even if they say they're in touch with their feelings, you have to help them push it, punch through, get them to the next level. They need to be able to articulate their true facts. And your job as an attorney, when it comes to discrimination, is to either be the therapist, helping the therapist go and working towards and helping the therapist articulate or to pair apart the evidence if you're a defense counsel. Either way, I'm glad you took this course and you learned what was going on, because my firm, myself, we can help you if you need us, discrimination claims, just give me a call, 646-216-8009. You can email me at [email protected]. Thanks for taking the class with us.