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Trying a Systemic Discrimination Case: Jury Selection, "Me Too" Evidence, Witnesses, Argument, Preserving Error

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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, December 4, 2019

Recorded event now available

or call 1-800-926-7926

This CLE course will address the rapidly expanding scope of claims related to the EEOC's systemic discrimination initiative. This session is devoted to trying the systemic discrimination case. The two broad categories covered are the same as in every trial -- prevailing, or alternatively, preserving the record for appeal.


The first issue addressed will be jury selection and how to use voir dire to identify the best jurors for the case. Trial counsel must take care in a discrimination case not to run afoul of Edmonson v. Leesville, prohibiting discriminatory jury strikes.

Opening and closing arguments and direct and cross-examination are devices to introduce the elements of proof that must be strategically presented to avoid depicting the discrimination plaintiff as deserving of sympathy. During these stages, counsel must be aware of the substantive evidence issues that are present and the nuances of personal interaction.

Though the charge conference and jury instruction have as their primary purpose the accurate portrayal of the law to the jury, they play a leading role in record preservation. Although the trial judge has latitude concerning evidence issues, the same is not so for errors of law in instructions. However, if counsel does not make a record of objection to such errors, then there can be no appeal.

Listen as this experienced panel of employment trial lawyers takes you through a systemic discrimination trial from start to finish. The panel will also provide valuable guidance as to how these trial principles apply to employment law counseling and litigation avoidance.



  1. Jury selection
    1. Who is the right juror for the case
    2. Voir dire violations
    3. Discriminatory strikes
  2. Opening statement
  3. Direct and cross
    1. Necessary substantive content
    2. Evidence issues, including "me too"
    3. Style issues
  4. Closing argument
  5. Jury instructions
    1. Essential content
    2. Preserving error
  6. Counseling lessons


The panel will review these and other noteworthy topics:

  • Jury selection
  • Opening and closing arguments
  • Direct and cross-examination
  • Jury instructions
  • Preservation of appeal
  • Counseling points


Brayley, Douglas
Douglas Brayley

Ropes & Gray

Mr. Brayley advises employers on a wide range of labor and employment matters, including noncompete and trade secret...  |  Read More

Kiely, Christy
Christy E. Kiely

Ms. Kiely's practice encompasses employment litigation, EEOC charges, #MeToo investigations, pay equity analyses,...  |  Read More

Sandberg, Katherine
Katherine P. Sandberg

Hunton Andrews Kurth

Ms. Sandberg has extensive experience in wage and hour class actions and high-stakes trade secrets litigation. She also...  |  Read More

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