Jottings By An Employer's Lawyer

Sunday, March 06, 2005

Broad Evidence Mandated By 9th Circuit in Pattern and Practice Case

The employer's lawyer had done a good job in a race case - convinced the court to exclude a statistical survey, prohibited a comment with racial overtones and avoided the dreaded mini-trials within a trial - by keeping out the anecdotal testimony of three others who also claimed to have been discriminated against on the same basis. The result, a trial victory. But, taking a much different view was the 9th Circuit holding that all of three areas of testimony should have been admitted. Obrey v. Johnson (9th Cir. 3/4/05) [pdf].

The key - that plaintiff had brought his case as a 'pattern and practice' one. In each case the court found the problems with the evidence were ones for rebuttal rather than exclusion.

Additionally, the Court also sorted out confusing 9th Circuit precedent - holding that the correct reading is that where evidence is erroneously excluded it is presumed to be prejudicial.

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