Example 14.4
Takeaway point 14.4: Adapt your motion to whatever legal standard applies.
The next example comes from another gender discrimination case — the largest class action ever tried in the United States.
Approximately 6,000 current and former female employees sued a huge Swiss drug manufacturer for employment discrimination, alleging that Novartis demonstrated bias against female employees by (1) paying women less than men, (2) promoting them less frequently than men, and (3) discriminating against pregnant women. Here, the plaintiffs rely on their experts to fend off the drug manufacturer’s attempt to win most of the case on summary judgment.Source: Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Motion for Partial Summary Judgment in Velez v. Novartis, No. 04 Civ. 09194 (GEL) (S.D.N.Y. May 7, 2009) (some citations omitted; table altered for simplicity’s sake).
Here and throughout the passage, the women’s attorneys contextualize this motion by weaponizing procedural history, discovery, and prior rulings in the case. This context helps demonstrate how the plaintiffs have satisfied their burden for summary judgment.
Just one month before this motion was filed, President Obama nominated to the Second Circuit the trial judge who had presided over this case for five years. The motion helps the new judge see that the defendant was trying to relitigate issues that the original judge had already resolved. This sort of command of the dispute’s history illustrates what senior lawyers mean when they say that a junior lawyer “knows the case.”
Without lining up a skilled expert, without getting Novartis’s data, and without slicing the data in a helpful way, the women’s case might have been lost on summary judgment. A pay difference of 1 percent or 2 percent might look coincidental.
This passage helps the judge understand how these seemingly small pay disparities reflect bias: the chances that this pay disparity occurred randomly were infinitesimal. Another section of the brief reiterated this data and cited a Supreme Court opinion and a Second Circuit opinion to show, respectively, that “statistical evidence that supports the inference [of] discrimination” will overcome summary judgment and “refined statistical regressions … demonstrate disparities at a rate of 2.0 standard deviations or higher.”
Trial lawyers use boldface more than appellate lawyers — to ensure that judges don’t miss key details.
After providing compelling statistical evidence of pay discrimination, the women’s attorneys remind the court that their burden at this juncture is an easy one. It’s always effective in dispositive motions to remind the judge about the standard of review, particularly when you (i) can link the standard of review to the particular type of evidence or claim at issue and (ii) convince the judge that, damn the standard, your client actually deserves to win. Here, the tiny likelihood that the pay discrepancy was random convinced the judge that the case should go to a jury.