Challenges at Trial Posed by The Duty to Mitigate Damages in Employment Discrimination and Termination Cases

Scope of Duty, Proving Lack of Mitigation, Expert Testimony

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, March 11, 2020

Recorded event now available

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Course Materials

This CLE course will address tips and tricks for Plaintiff’s and Defendant’s counsel presenting evidence at trial regarding Plaintiff’s mitigation of damages.


Defense counsel must weigh the concerns of conceding liability at trial by discussing damages at all, against the need to give the jury tools to adequately value the case if they find for Plaintiff. Meanwhile, the Plaintiff's counsel must weigh during the trial the need to show Plaintiff tried to mitigate against the likelihood that the jury will factor in Plaintiff’s replacement compensation to reduce the ultimate verdict.

Employment plaintiffs, like all other plaintiffs, have a duty to mitigate damages. In the context of post-termination pay, that means finding a new job. Jury Instructions make crystal clear that the defendant bears the burden of proving that plaintiff failed to adequately mitigate her damages, and defendant must do so by showing that there were available positions for the plaintiff that were comparable in duties and pay. Producing evidence of opportunities immediately post-termination can be challenging when the case has dragged on for years. Expert testimony can play a role in such proof.

Plaintiffs must be coached to keep records of all job searches--and rejected opportunities--and counsel must learn how to present them at trial in an admissible format so that these can be shared with the jury.

Listen as this panel of experienced employment law attorneys discusses this oft-neglected area of employment law which can have huge implications on your jury verdict. The panel will not only review the salient legal points but will provide practical guidance from pre-claim activity, during discovery, and proof at trial.



  1. Duty to mitigate
  2. Burden of proof
  3. Limitations on duty
    1. Similar job
    2. Compensation issues
  4. Evidentiary issues
    1. Proving plaintiff's efforts
    2. Expert testimony
  5. Arguing mitigation to the jury


The panel will review practical and legal matters including:

  • What are the relevant sources of federal and state law regarding mitigation?
  • Are there evidentiary steps a plaintiff can take to prove mitigation?
  • What are the practical implications of Defendant’s burden regarding Plaintiff’s mitigation?
  • How can a defendant strategically raise mitigation without seemingly admitting damages?
  • Who can testify as to the adequacy of Plaintiff’s efforts to mitigate?


Kappelman, Lynn
Lynn A. Kappelman

Seyfarth Shaw

Ms. Kappelman began her practice as a commercial litigator, but since the 1990s, her practice has focused on employment...  |  Read More

Spiggle-J. Thomas
J. Thomas Spiggle

The Spiggle Law Firm

Mr. Spiggle founded Spiggle Law to help individuals facing difficult workplace issues. As a former prosecutor with...  |  Read More

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