CLOSING ARGUMENTS A Closing Argument should: 1. Repeat your theory and theme of the case 2. Summarize the evidence that preceded it 3. Relate the evidence to the law and the legal issues (i.e. Argue!) 4. Describe the burden of proof and who it lies with 5. Tell of your client's right to a verdict Common Format for a Closing: 1. Address the court, jury, and opponent 2. Repetition of theme and theory of the case 3. Summarize the facts and relate them to the legal issues and the law 4. Argue using these facts and the law 5. Tell the jury what its verdict should be 6. Sit Down. Things to Remember Regarding Closings: Do: 1. Think about, prepare, and rehearse closing prior to trial 2. Leave flexibility in your closing to meet exigencies of trial (i.e. evidence that is ruled inadmissible, etc.) 3. Think about, modify, and rehearse your closing at each break in the trial in light of the record up to that point 4. Base your closing on the evidence, issues, burden, and desired verdict Do Not: 1. Exaggerate or be vindictive in closing 2. Repeat testimony in chronological order- boring! 3. Tell jury that what you say is not evidence- detracts from your argument 4. Assume a burden that is not yours 5. Express personal opinions 6. In a criminal trial- do not comment on the defendant's failure to testify - MISTRIAL! Strategies for Closing Argument: 1. Repeat your theme from the opening to grab the jury's attention 2. Argue! Apply the facts to the law- how do the facts elicited at trial prove your case or disprove opposing counsel's? 3. Stay within your theory of the case from the opening. Argue that your theory of the case is the accurate theory. 4. Use your exhibits in closing. Valuable for keeping the attention of the jury. 5. Use rhetorical questions, analogies, stories, and other devices for keeping the attention of the jury 6. Focus on the strengths of your case. A focus on the weaknesses of the opposing counsel's case shows you have little good to say about your case. 7. Deal candidly with your weaknesses. 8. Build up your witnesses. Repeat their credentials, qualifications, proximity as an eyewitness, etc. AMTA Rules RE: Closings-Remember that AMTA rules limit closing arguments to 9 minutes. To use the time adequately, a typed closing should be around three pages. - No objections during closings 2016-17 Case Problem A civil case of employment discrimination Riley Winter v. TBD, Inc. BY THE AMTA CIVIL CASE COMMITTEE JUSTIN BERNSTEIN MICHAEL J. GELFAND DANIEL HAUGHEY TOBY HEYTENS MACKENZI SIEBERT ABBE STENSLAND KYLE WEST Revised 12/4/16 Synopsis Professional writer Riley Winter, age 50 at the time of termination, has sued an online magazine, TBD, Inc., for wrongful termination on the basis of age discrimination. Available Witnesses Riley Winter, writer Austin Perez, editor in chief Bobbie Lin, secretary Sam Owens, employment expert Cary Kramer, psychiatrist Sawyer Shaw, chief executive officer Skye Martin, human resources manager Adrian Edwards, tech magnate Kirby Doolittle, intern Vic Fogel, journalism expert We Need Your Help! Please report any typos, inconsistencies, or other errors to amta.civilcase@collegemocktrial.org. We do not anticipate releasing any additional changes before regionals. NEW AMTA POLICY - Licensing Fee for Use of Case Materials at Invitational Tournaments These case materials are the intellectual property of the American Mock Trial Association. By paying the School Registration Fee, a school acquires a license to use this case for internal educational purposes and to compete at AMTA-sanctioned tournaments (that is, regionals, ORCS, and the National Championship Tournament). Under AMTA's Intellectual Property policy, however, this license does not by itself permit use of these case materials to host an invitational tournament. Instead, Schools wishing to use these case materials to host an invitational tournament must obtain a separate license to do so. For 2016-17, this license will require tournament hosts to pay to AMTA an amount equal to 5% of gross fees collected from all participating teams, to provide AMTA with a copy of the tournament tab summary, and to respond promptly to any requests for information from AMTA. Failure to comply with any of these requirements could result in sanctions under the AMTA rules or other consequences, including inability to compete in AMTAsanctioned tournaments until the school is in compliance. If you have any questions, please contact AMTA.IP@collegemocktrial.org. Notes and Acknowledgments This case is a work of fiction, and AMTA owns all rights. Any similarity to real people, companies, locations, trade names, service marks, or copyrighted material is purely coincidental. The case committee wishes to thank: Alex Bluebond, Brandon Harper, Sue Johnson, Michael Nelson, and Melissa Schuett for proofreading the case. Sarah Sawtelle for creating our more technically challenging exhibits and logos. 1 1 Revised 12/4/16 SPECIAL INSTRUCTIONS Witnesses and Witness Selection 1. Witness Availability: Winter, Perez, Lin, Owens, and Kramer may be called only by the plaintiff. Shaw, Martin, Edwards, Doolittle, and Fogel may be called only by the defense. See Instructions 2(a) and (b) for special rules governing Kramer and Shaw. 2. Captains Meeting Procedures. Damages election and witness selection must proceed sequentially down the Captains Meeting Form. All announcements are final once made. a. Step 1: Plaintiff announces whether it is pursuing damages or whether the trial has been bifurcated into separate liability and damages phases. i. If plaintiff pursues damages: 1. Legal Document 5 (Pretrial Order (Liability Only)) does not exist and may not be referenced by either team for any purpose. 2. Plaintiff must select Kramer as one of its three witnesses. ii. If plaintiff chooses bifurcation: 1. Legal Document 6 (Pretrial Order (Damages)) does not exist and may not be referenced by either team for any purpose. 2. Plaintiff may not select Kramer as one of its three witnesses. b. Step 2: Defense announces if it is calling Shaw. i. If Shaw is one of the three defense witnesses: 1. Exhibit 20(2) (timestamp 2:00 p.m.) does not exist. ii. If Shaw is not one of the three defense witnesses: 1. Exhibit 20(1) (timestamp 1:59 p.m.) does not exist. 2. Notwithstanding AMTA Rule 4.31(1), the defense team's total allotted time for direct examination will be reduced to 20 minutes. c. Step 3: Defense announces its remaining witnesses. d. Step 4: Plaintiff announces its three witnesses, subject to the rules stated in Step 1. 3. Genders of available witnesses: The plaintiff team determines the genders of all available plaintiff witnesses. The defense team determines the genders of all available defense witnesses. 4. Party Representatives. Winter and Shaw are the only permissible party representatives under Rule 615 of the Midlands Rules of Evidence. If Winter or Shaw will be called as witnesses, they must be designated as party representatives by the party calling them. Other provisions 5. Reports as \"Affidavits.\" The reports of Owens, Kramer, and Fogel are \"affidavits\" for purposes of AMTA Rules 8.9 (Invention of Fact) and 8.17 (Admission) and thus may not be offered into evidence. 6. Winter and Shaw Depositions. Riley Winter and Sawyer Shaw do not have affidavits or reports. The depositions of Winter and Shaw are not \"affidavits\" for purposes of AMTA Rules 8.9 (Invention of Fact) or 8.17 (Admission). Students playing Winter and Shaw may build their testimony using the depositions and other documents in the case. Winter and Shaw may also invent facts outside of the case documents, but can still be cross examined on those inventions using the deposition, exhibits, or other case materials. All inventions of fact by Winter and Shaw must comply with all AMTA Rules and other special instructions in the case. For example, Shaw may not deny that Shaw gave the answers given in the deposition after having sworn to tell the truth or deny having sent any emails or texts that purport to have been sent by Shaw. 1 Revised 12/4/16 7. Fifth Amendment. No witness may refuse to answer any questionand no attorney may instruct a witness not to respondbased on the witness's Fifth Amendment rights. 8. Birthday card (Exhibit 8). Teams may use the birthday card exhibit in two ways. First, teams may use the materials in their provided form (or an enlargement thereof) as an exhibit, subject to the rules of evidence. Second, teams may use the provided materials to approximate an actual birthday card (including by folding the materials, printing them on cardstock, or the like) so long as they do not add content or alter the existing content in any way. (To print the card in doublesided format, select \"Flip on short side\" or similar before printing). Any team wishing to approximate an actual card must show the card to the other team during the captains meeting so that any concerns may be brought to the attention of the AMTA representatives. 9. Final Versions (and Revision Dates). All participants must acknowledge that all case documents are the final and only versions of those documents. AMTA's case corrections will be indicated by dates (e.g. \"8-15-2015\") at the top or bottom of corrected documents. For purposes of the trial, such dates do not indicate anything else about the history of the document. For instance, dates do not indicate that a witness has revised his or her affidavit, report, declaration, etc., or when such a revision occurred. 10. Witnesses must be able to respond to cross-examination. Stipulation 7 provides that \"[a]ll parties and witnesses are of at least of normal intelligence and none has or ever has had a mental condition that would impact a person's perception, memory, or ability to respond to questions on cross examination.\" It is a violation of that stipulation and of this special instruction to portray Riley Winteror any other witnessin a manner that renders Winter unable or unwilling to respond to otherwise proper questions on cross examination. 2 CAPTAINS MEETING FORM To get ballots, competitors must complete this form and submit it to the AMTA representative (or, at invitational competitions, the tournament host). Courtroom # ____ The Captains Meeting proceeds in the following order: All selections are final and binding once announced. 1. Plaintiff decides whether to bifurcate the trial (liability only) or pursue damages: BIFURCATE Legal Document 6 Does Not Exist Plaintiff May Not Call Kramer DAMAGES Legal Document 5 Does Not Exist Plaintiff Must Call Kramer 2. Defense announces whether it is calling Shaw: SHAW Exhibit 20(2) Does Not Exist Defense Has 25 Minutes For Direct NO SHAW Exhibit 20(1) Does Not Exist Defense Has 20 Minutes For Direct 3. Defense selects its remaining witnesses from Martin, Edwards, Doolittle, and Fogel. 4. Plaintiff selects its remaining witnesses from Winter, Perez, Lin, and Owens. 5. In the table below, circle the three witnesses selected by each party (six total). Each party indicates the gender of each of its available witness, including those not called. Plaintiff Witness M/F Defense Witness Riley Winter Sawyer Shaw Austin Perez Skye Martin Bobbie Lin Adrian Edwards Sam Owens Kirby Doolittle Cary Kramer Vic Fogel M/F CASE DOCUMENTS Legal Documents 1. Complaint 2. Answer 3. Available Law 4. Stipulations 5. Pretrial Order (Liability Only). See Special Instruction 2(a). 6. Pretrial Order (Damages). See Special Instruction 2(a). Plaintiff Witness Materials 1. Riley Winter (Deposition) 2. Austin Perez (Affidavit) 3. Bobbie Lin (Affidavit) 4. Sam Owens (Report) 5. Cary Kramer (Report) Defense Witness Materials 6. Sawyer Shaw (Deposition) 7. Skye Martin (Affidavit) 8. Adrian Edwards (Affidavit) 9. Kirby Doolittle (Affidavit) 10. Vic Fogel (Report) Revised 9/23/16 EXHIBIT LIST Defendant TBD, Inc.'s Responses to Plaintiff's Interrogatories Remarks to TBD, Inc. Staff TBD People Policy Memorandum from Martin to Winter (December 1, 2014) Email from Winter to Perez (January 12, 2015) Email from Shaw to All Staff (April 27, 2015) Email from Shaw to All Staff (August 12, 2015) Birthday card Memorandum from Martin to Winter (December 1, 2015) Riley Winter, TURNTable's New QRate Is Ruining Music (December 15, 2015) Email from Winter to Perez and accompanying attachment (Dec. 16, 2015, 8:47 a.m.) Email from Perez to Winter and accompanying attachment (Dec. 16, 2015, 10:08 a.m.) Email from Winter to Perez (Dec. 16, 2015, 11:47 a.m.) \"What Kirby Learned\" Text messages from Shaw to Edwards (December 23, 2015) Email from Edwards to Shaw (December 23, 2015) Letter from Shaw to Winter (December 23, 2015) Writers Employed by TBD, 2014-2015 Press release: \"Greene-er Days for TBD's Culture Beat\" (Dec. 23, 2015) Email from Perez to Perez (December 23, 2015) (a) Version 20(1) (sent 1:59 p.m.) See Special Instruction 2(b). (b) Version 20(2) (sent 2:00 p.m.) See Special Instruction 2(b). 21. Email from Shaw to Mayes (December 23, 2015). 22. \"Riley Winter Articles, Clicks, and Shares\" and accompanying declaration 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 1 Revised 12/4/16 CIRCUIT COURT OF MIDLANDS Riley Winter, Case No. CV 11-715 Plaintiff, Action filed: February 29, 2016 v. Judge Rachel Oliver TBD, Inc., Defendant. Complaint 1. This is an employment discrimination action brought under the Midlands Age Discrimination Act of 1967 (\"MADA\"). JURISDICTION, VENUE, & ADMINISTRATIVE PREREQUISITES 2. This court has subject matter jurisdiction, personal jurisdiction, and is a proper venue for this lawsuit. 3. Plaintiff has complied with all administrative requirements to bringing this action, including exhausting administrative remedies. PARTIES AND RELEVANT INDIVIDUALS 4. Plaintiff Riley Winter (\"Winter\") is a citizen of Midlands born on November 20, 1965. 5. Defendant TBD, Inc. (\"Defendant\") is a corporation chartered under the laws of Midlands that publishes a magazine called \"TBD.\" 6. Since January 1, 2014, Sawyer Shaw (\"Shaw\") has been sole shareholder and CEO of Defendant. Shaw was born June 20, 1987. 7. From January 2, 2014, through and including March 31, 2016, Austin Perez (\"Perez\") was editor in chief of TBD. From January 2, 2014 until the present Skye Martin (\"Martin\") has been Director of People Operations for Defendant. COUNT 1: AGE DISCRIMINATION IN TERMINATION 8. Winter was employed by Defendant from July 14, 1988, to December 23, 2015. 9. On December 23, 2015, Winter's employment was terminated by Defendant. Winter did not resign, retire, or otherwise voluntarily give up Winter's position. 10. Winter was 50 years old as of the date that Winter was terminated. 11. Shaw, Perez, and Martin all were aware of Winter's age as of December 23, 2015. 1 Revised 12/4/16 12. At the time of Winter's termination, Winter's title was senior staff writer. 13. At the time Winter was terminated, Winter was fulfilling all of Defendant's legitimate expectations in terms of conduct and performance. 14. At or about the time Winter's employment was terminated, Defendant hired Landon Greene (\"Greene\") to replace Winter. As of December 23, 2015, Greene was 26 years old. 15. In violation of MADA, Defendant terminated Winter's employment because of, or on the basis of, Winter's age. PRAYER FOR RELIEF THEREFORE, Plaintiff demands judgment against Defendant and compensatory damages for past lost wages, future lost wages, medical bills, and emotional distress in an amount of $4,000,000. Respectfully submitted, K. Villany Gupta, Piacenti, & Villany Attorneys for Plaintiff 2 Revised 12/4/16 CIRCUIT COURT OF MIDLANDS Riley Winter, Case No. CV 11-715 Action filed: February 29, 2016 Plaintiff, v. Judge Rachel Oliver TBD, Inc., Answer Defendant. 1. This is an employment discrimination action brought under the Midlands Age Discrimination Act of 1967 (\"MADA\"). a. Defendant's response: Admitted. JURISDICTION, VENUE, & ADMINISTRATIVE PREREQUISITES 2. This court has subject matter jurisdiction, personal jurisdiction, and is a proper venue for this lawsuit. a. Defendant's response: Admitted. 3. Plaintiff has complied with all administrative requirements to bringing this action, including exhausting administrative remedies. a. Defendant's response: Admitted. PARTIES AND RELEVANT INDIVIDUALS 4. Plaintiff Riley Winter (\"Winter\") is a citizen of Midlands born on November 20, 1965. a. Defendant's response: Admitted. 5. Defendant TBD, Inc. (\"Defendant\") is a corporation chartered under the laws Midlands that publishes a magazine called \"TBD.\" a. Defendant's response: Admitted. 6. Since January 1, 2014, Sawyer Shaw (\"Shaw\") has been sole shareholder and CEO of Defendant. Shaw was born June 20, 1987. a. Defendant's response: Admitted. 1 Revised 12/4/16 7. From January 2, 2014, through and including March 31, 2016, Austin Perez (\"Perez\") was editor in chief of TBD. From January 2, 2014 until the present Skye Martin (\"Martin\") has been Director of People Operations for Defendant. a. Defendant's response: Admitted. COUNT 1: AGE DISCRIMINATION IN TERMINATION 8. Winter was employed by Defendant from July 14, 1988, to December 23, 2015. a. Defendant's response: Admitted. 9. On December 23, 2015, Winter's employment was terminated by Defendant. Winter did not resign, retire, or otherwise voluntarily give up Winter's position. a. Defendant's response: Admitted. 10. Winter was 50 years old as of the date that Winter was terminated. a. Defendant's response: Admitted. 11. Shaw, Perez, and Martin all were aware of Winter's age as of December 23, 2015. a. Defendant's response: Admitted. 12. At the time of Winter's termination, Winter's title was senior staff writer. a. Defendant's response: Admitted. 13. At the time Winter was terminated, Winter was fulfilling all of Defendant's legitimate expectations in terms of conduct and performance. a. Defendant's response: Denied. 14. At or about the time Winter's employment was terminated, Defendant hired Landon Greene (\"Greene\") to replace Winter. As of December 23, 2015, Greene was 26 years old. a. Defendant's response: Defendant admits that it hired Greene as a writer in December 2015 and that Greene was 26 years old. Defendant denies that Greene was hired to \"replace\" Winter or in fact \"replaced\" Winter. 15. In violation of MADA, Defendant terminated Winter's employment because of, or on the basis of, Winter's age. a. Defendant's response: Denied. Respectfully submitted, R. Zhu Zhu, Cohen, & Stern Attorneys for Defendant 2 Revised 12/4/16 AVAILABLE LAW The statute and cases listed below are the only legal authorities that may be cited in trial. Statutes NOTE: All statutes are from Title 29 of the Midlands Code (M.C.) Chapter 14 -- Midlands Age Discrimination Act 29 M.C. 623 - Prohibition of age discrimination It shall be unlawful for an employer-(a) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual's age . . . 29 M.C. 631 - Age limit The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age. 29 M.C. 972 - Remedies A plaintiff who prevails in an action under Section 623 may recover compensatory damages. Relevant Cases (All cases are from the Supreme Court of Midlands) MIDLANDS AGE DISCRIMINATION ACT Elements and Nature of Proof O'Keefe v. Tunceli (1990) To establish liability under the Midlands Age Discrimination Act (MADA), a plaintiff must prove three elements: (1) the plaintiff was a member of the protected class; (2) the defendant took an adverse employment action against the plaintiff; and (3) the defendant took the adverse employment action because of the plaintiff's age. To obtain damages, a plaintiff also must establish a fourth element: (4) legally cognizable harm. Mendoza v. Jovic (2015) The well-known burden-shifting framework associated with McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), has no application in a MADA trial. Even in federal court, that standard applies at the summary judgment stage, not at trial. In addition, under MADA, the burden never shifts to the employer to show it would have taken the same action regardless of age. See Villany v. Vincent (2014). Instead, the parties' obligations are governed solely by O'Keefe and its progeny. Element 1: Protected class Liaolo v. Ahmed (1985) A plaintiff is a member of the protected class so long as she was at least 40 years old at the time of the challenged employment decision. Element 2: Adverse employment action Mourrain v. Thompson (1992) Termination of employment is, by definition, an \"adverse employment action.\" 1 Revised 12/4/16 Element 3: Discriminatory intent and causation Hobbs v. Xiao (1999) The plaintiff must prove age was the \"but-for\" cause of the challenged employment decision. Put another way, the plaintiff must show that her age actually motivated and was a necessary precondition for the employer's action. Villany v. Vincent (2014) Under MADA, the burden of persuasion never shifts to the defendant to prove that it would have taken the same action regardless of the plaintiff's age. Instead, the plaintiff always must prove that the defendant would not have taken the same action if not for the plaintiff's age. Chan v. Ingram (1992) The only relevant consideration under the third element of O'Keefe is the defendant's actual reason(s) for terminating the plaintiff's employment. For example, a defendant who fires an employee because of gender cannot escape liability merely because the defendant happened to have other reasons that could have motivated, but did not actually motivate, the termination. Laughlin v. Bitterly (2015) A plaintiff may establish that age was the \"but for\" cause of the adverse employment action through direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. Dworkin v. Devanathan (2000) Saying age must have been a \"but for\" cause is not the same as saying that age must have been the only factor with respect to the challenged decision. For example, if half of a company's employees consistently arrive late to work but the employer only disciplines employees who have blue eyes, eye color was a \"but for\" cause of the discipline even though the employees also would not have been disciplined had they shown up for work on time. Zapata v. Doolittle (1988) In Midlands, employees are presumed to be \"at will,\" meaning they can be terminated for no reason or any reason not prohibited by law. MADA does not create a \"for-cause\" requirement for firing older workers, meaning that an employee over 40 is still an at-will employee and can be fired even if the employee did not engage in misconduct or violate one of the employer's policies. MADA does not authorize courts or juries to impose liability for termination decisions deemed unwise, foolish, or even cruel. The question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason was age discrimination. Stebbins v. Rahimzada (1988) A jury does not need to take an employer's stated reason for an employment decision at face value. Evidence that an employer gave reasons for a decision that were false or otherwise pretextual can provide circumstantial evidence that the true reason was an unlawful one. Kriegel v. Mina (1996) The fact that younger employees were not disciplined for engaging in the same type of conduct cited to justify an older worker's termination is one type of evidence that can support a plaintiff's claim that reasons given by employer were pretextual. Lucas v. Karabatakis (1994) Comments by decisionmakers that reflect stereotypical attitudes, biases, or prejudice based on age can provide circumstantial evidence of discrimination. In contrast, stray remarks by non2 Revised 12/4/16 decisionmakers are entitled to little weight, particularly if they are remote in time from the date of the challenged employment action or if there is no evidence that they were made in the presence of (or communicated to) decisionmakers. Berman v. Ortiz (1993) A defendant's failure to follow its own previously announced policies for hiring, terminating, or disciplining employees is not enough, by itself, to prove that discrimination was the real reason for a challenged action. At the same time, such evidence may be considered by the trier of fact in deciding whether the plaintiff has met her burden of showing illegal discrimination. Crespo v. DeRosa (2014) An employer's general practices (including the employer's: (i) failure to adopt or enforce a sufficient non-discrimination policy; (ii) failure to sufficiently train its employees on the policy the employer has; and/or (iii) use of subjective factors for hiring and firing decisions) are not by themselves enough to prove that intentional discrimination was the real reason for a challenged action. However, courts recognize that these types of failures and practices contribute to an environment in which intentional discrimination is more likely to occur. As such, evidence of these or similar failures and practices by an employer may be considered by the trier of fact in deciding whether the plaintiff has met her burden of showing illegal discrimination. Fineman v. Hungar (2016) Appeal in failure-to-promote case where trial court had excluded evidence that promotion had gone to 38-year-old co-worker instead of 65-year-old plaintiff. Judgment reversed. Evidence that promotion went to person outside the protected class is relevant circumstantial evidence of age discrimination. Smith v. Eldridge Co. (2015) Sex discrimination case involving a single plaintiff. The trial court excluded all evidence that women other than the plaintiff had been fired, not hired, or disciplined by the defendant, reasoning that such evidence was barred by Midlands Rules of Evidence 404(a)(1) and 404(b)(1). Judgment reversed. Rules 404(a)(1) and (b)(1) bar such evidence if it is being offered to demonstrate propensity, that is, \"to show that on a particular occasion the person acted in accordance with\" a trait of character or prior actions. But, as Rule 404(b)(2) explains, such \"prior act\" evidence may be offered for other purposes, such \"as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.\" Here, for example, the plaintiff argued that the evidence was admissible to show that the plaintiff's manager intended to create an all-male department and that the plaintiff's firing was part of a single plan to achieve that end. Those are permissible purposes under Rule 404(b)(2). Element 4: Damages Mehrabyan v. Bruce (2003) A plaintiff may recover compensatory damages under MADA. The purpose of compensatory damages is to make the plaintiff whole by restoring her (through money damages, rather than reinstatement) to the position she would have occupied if not for the defendant's unlawful conduct. Baratta v. Stein (2005) Under MADA, compensatory damages may include recovery for past lost wages, future lost wages, medical bills, and emotional distress suffered as a result of the defendant's conduct. 3 Revised 12/4/16 Zurawski v. Wallace (2002) All damages must be established with reasonable certainty. Damages that are remote, speculative, contingent, or merely possible cannot form the basis for recovery. At the same time, there is no rigid time limit beyond which damages may not extend. The question in every case is simply whether a given harm to the plaintiff was the result of the defendant's wrongful conduct. Erickson v. Oliver (2012) Compensatory damages may not be calculated based on the abstract value of the rights in question or a desire to punish the defendant. In every case, the focus must be on the tangible harm suffered by the plaintiff. O'Neill v. Sommers (2011) A plaintiff who does not expressly seek punitive damages in her complaint is categorically barred from seeking them at trial. See Thomas v. Davis (2001). Rayburn v. O'Bannon (1991) Under MADA, a plaintiff has a duty to mitigate damagesthat is, exercise the diligence a hypothetical reasonable person would in seeking a new job. Failure to do so may reduce or even eliminate damages for lost wages. The defendant bears the burden of proving a plaintiff's failure to mitigate by a preponderance of the evidence. If a defendant does not prove the plaintiff's failure to mitigate, the jury may not reduce plaintiff's damages on that basis. Gallagher v. Hogan Salons, LLC (2014) Although \"reasonable diligence\" usually does not vary from plaintiff to plaintiff, juries should consider what effects diagnosable physical or psychological conditions would have on otherwise reasonable people. For example, in Gallagher, the jury should have considered what a reasonably diligent person with the plaintiff's diagnosed anxiety disorder would have done to obtain employment. Identity of the defendant Li v. Brodkin (1996) The defendant in an employment discrimination action is the plaintiff's employer itself rather than the plaintiff's supervisor, boss, or other individual working for or on behalf of the employer. This remains true even if the employer is a corporation with a single shareholder. No disparate impact liability Stern v. Durkin (1994) \"Disparate impact\" is not a valid theory of liability under MADA. That is, it is not enough for a plaintiff to show simply that the defendant had policies that were not motivated by age but nonetheless had an incidental (and disproportionate) impact on older workers. Rather, in every case, the plaintiff must show that the defendant intentionally discriminated because of the plaintiff's age. At the same time, however, the fact that the defendant's policies had an disproportunate impact on older workers may serve as one form of evidence of the required discriminatory intent. OTHER PROVISIONS Preliminary questions Runde v. Grandhi (1988) Pursuant to Midlands Rule of Evidence 104(a), courts may consider custodial documents, such as clerks' certifications or affidavits of records keepers, when determining the admissibility of other evidence without regard for the admissibility of the custodial document itself. The custodial document typically only addresses preliminary matters of admissibility and is not entered into 4 Revised 12/4/16 evidence, and thus the court is not bound by the rules of evidence when considering it. However, if a party wishes to enter the custodial document itself into evidence, the proper foundation must be laid to establish its admissibility. Authentication Filteau v. Wanek (1992) The application of various rules of evidence sometimes turns on who made a particular statement. As long as the proponent of the statement produces evidence that would permit a reasonable jury to find, by a preponderance of the evidence, that a given person made a particular statement, the court must assume for purposes of assessing its admissibility that the statement was made by that person. Ginger v. Heisman (2015) Emails or text messages are properly authenticated when the proponent has produced evidence, either direct or circumstantial, that would allow a reasonable jury to determine the author of the message. The fact that an email, text message, or other electronic communication is listed as coming from an address or number that is either known or purports to belong to a particular person is sufficient to lay foundation that the communication was sent by the person in order to determine its admissibility, at least absent particularized reason to believe that the communication may have been sent by someone else. Attorney-Client Privilege Hobbs v. Schmidt (1984) Midlands recognizes the attorney-client privilege, which protects from disclosure all (1) communications (2) between a lawyer and (3) his or her client, (4) made with the expectation of confidentiality, (5) for the purpose of obtaining or conveying legal advice (6) not in furtherance of ongoing fraud or a future crime. Swift v. Schlichting (2003) No attorney-client privilege exists until an attorney-client relationship has been formed. Thus, before ruling on whether a particular communication is protected by the attorney-client privilege, the court first must determine, by a preponderance of the evidence, whether an attorney-client relationship existed at the time the communication was made. Burdens of proof Piacenti v. Pruitt & Constine LLP (1974) A plaintiff in a civil case must establish all of the elements of its claim by a preponderance of the evidence (i.e., it must establish that all elements are more likely than not true). Experts Davis v. Adams (1993) Trial judges must ensure that any scientific testimony or evidence admitted is not only relevant but reliable. In determining reliability, judges should consider only the methods employed and the data relied upon, not the conclusions themselves. The proponent of the evidence has the burden of proving each section of Rule 702 by a preponderance of the evidence. Tarot Readers Association of Midlands v. Merrell Dow (1994) In assessing reliability under Rule 702(c), judges should consider whether the theory or technique has been or can be tested, whether it has been subjected to peer review and publication, whether it has a known error rate, and whether it has gained widespread acceptance within the field. These fac5 Revised 12/4/16 tors, while relevant, are not necessarily dispositive. For example, lack of publication does not automatically foreclose admission; sometimes well-grounded but innovative theories will not have been published. There is no definitive checklist. Judges must make such assessments based on the totality of the circumstances. Richards v. Mississippi BBQ (1997) Midlands Rule of Evidence 703 does not permit experts to testify or present a chart in a manner that simply summarizes inadmissible hearsay without first relating that hearsay to some specialized knowledge on the expert's part. The court must distinguish experts relying on otherwise inadmissible hearsay to form scientific conclusions from conduits who merely repeat what they are told. The testimony of the former is admissible; that of the latter is not. At the same time, statements that would otherwise be admissible are not inadmissible simply because they are offered by or through an expert witness. Framing the Issues for Trial Thomas v. Davis (2001) The purpose of the pleadings is to frame the issues for trial and permit the parties to frame their presentations accordingly. This latter function is especially important because Midlands, unlike most jurisdictions, does not permit the plaintiff to call rebuttal witnesses or the defendant to alter its decision about which witnesses to call after hearing the plaintiff's evidence. Accordingly, it is highly inappropriate for a party that has alleged or denied something in its complaint or answer to seek to prevent its adversary from presenting otherwise admissible evidence that relates to that thing by asserting that it is no longer interested in alleging or contesting that particular thing. Parties may, of course, choose which evidence they wish to present and which arguments they wish to emphasize, but the time for amending one's pleadings is well before the court convenes for purposes of trial. CJ v. Nathan (2005) Plaintiff did not violate the rule of Thomas v. Davis (2011) by asking that the jury award less than the full amount of damages demanded in the complaint. We emphasize, however, that this ruling does not permit a plaintiff to ask the jury to award a greater figure. Hearsay Dolly v. Ringo (2010) Unlike most other evidentiary rules, Rule 801(d)(2) may be invoked in only one direction. Under that rule, the plaintiff may offer statements by the defendant and the defendant may offer statements by the plaintiff. But Rule 801(d)(2) does not permit the plaintiff to offer statements by the plaintiff or the defendant to offer statements by the defendant, even if the opposing party has already elicited out-of-court statements by the party during a preceding examination, subject to Rule 106. America's Best Cookie v. International House of Waffles (2009) The Court recognizes that practices differ in other jurisdictions. But, in Midlands, the definition of \"hearsay\" includes out-of-court statements by a witness who is on the stand or by another person who has or will be testifying in a particular trial. Depositions and Interrogatory Responses Katelyn v. Reynolds (2014) Interrogatories are written questions and answers exchanged by the parties during the discovery stage of a civil case. One party sends a list of questions, and the other party answers them and executes a verification attesting that the answers are true. Because such verified interrogatory responses 6 Revised 12/4/16 are statements that \"the party manifested that it adopted or believed to be true\" (MRE 801(d)(2)(B)), those answers are not hearsay if offered by the opposing party, though other evidentiary objections may still apply. Isaac v. Kylie (2016) Because interrogatory responses are created and exchanged during discovery, they are not automatically part of the trial record. Instead, as with a substantive stipulation, a party wishing to make an interrogatory answer part of the trial record must seek the court's leave to read that interrogatory question and response (or part of question and response) onto the record. Wolkin v. Christie (2013) In Midlands, substantive objections are not appropriate during a deposition. As a result, failure to object to a question during a deposition does not preclude a party from objecting to the deposition (or an excerpt) being offered at trial. Witnesses Must Be Able to Respond to Cross Examination Miller v. Liu (2014) Civil case arising from alleged assault. The plaintiff was called as a witness and testified fully on direct examination. On cross examination, however, the plaintiff failed to respond to some questions, purportedly because of a condition arising from the assault. Held: The judgment for the plaintiff must be reversed. The reason why the witness failed to respond to questions on cross examaintion is immaterial. If a witness becomes unable or unwilling to respond to otherwise proper questions on cross examiation, the trial court must strike the witness's testimony in its entirety. 7 Revised 12/4/16 CIRCUIT COURT OF MIDLANDS Riley Winter, Case No. CV 11-715 Plaintiff, v. Judge Rachel Oliver TBD, Inc., Stipulations Defendant. 1. For the convenience of the parties, witnesses, court, and jury, all potential exhibits have been pre-labeled and pre-numbered. Those numbers will be used for all purposes at trial, regardless of which party first offers the exhibit or the order in which the exhibits are offered. 2. The parties, having engaged in discovery, agree that no documents other than Exhibits 1-22 are relevant. This stipulation does not bar relevance objections to Exhibits 1-22. This stipulation also does not address demonstrative aids that may be used during trial and will not be admitted into evidence. 3. Plaintiff's sole theory of recovery is intentional discrimination (also known as disparate treatment) in termination based on age. There is no disparate impact claim; no retaliation claim; no claim for discrimination on any grounds other than age; no freestanding claim with respect to hiring, failure to promote, harassment, or workplace discipline; and no claim based on any statute or doctrine other than the Midlands Age Discrimination Act. All such claims were dismissed and may not be renewed at trial. 4. The parties agree that, since December 23, 2015, Defendant has taken no employment actions that are relevant to this proceeding. 5. Between January 2, 2014 and March 31, 2016, inclusive, Sawyer Shaw, Bobbie Lin, Skye Martin, and Austin Perez were agents and employees of Defendant TBD, Inc. Shaw, Lin, and Martin are still agents and employees of TBD. 6. Plaintiff was an \"at will\" employee at all times during Plaintiff's employment with Defendant. 7. All parties and witnesses are of at least of normal intelligence and none has or ever has had a mental condition that would impact a person's perception, memory, or ability to respond to questions on cross examination. 8. With respect to all protected classes (including gender, sexual orientation, ethnicity, national origin, religion, age, and disability status), Landon Greene and Riley Winter differ only with respect to age. 9. At the depositions of Riley Winter and Sawyer Shaw, all deponents and parties to this action were represented by counsel. All signatures on the depositions are authentic and of the people they purport to be. 10. As of December 23, 2015, Plaintiff's salary was $200,000 per year. 11. At Plaintiff's salary as of the date of termination, the net present value of 5 years of additional employment would have been $842,427.76, the net present value of 10 years of additional employment would have been $1,472,017.41, and the net present value of 15 years of additional employment would have been $1,942,449.80. 12. Since December 23, 2015, Plaintiff has incurred $11,000 in total medical expenses, including psychological treatment, none of which has been reimbursed by insurance. 13. All notice requirements of Midlands Rule of Evidence 902(11) and 902(12) have been satisfied. CIRCUIT COURT OF MIDLANDS Riley Winter, Case No. CV 11-715 Plaintiff, v. Judge Rachel Oliver TBD, Inc., Defendant. Pretrial Order (Liability Only) Order filed: August 15, 2016 1. Bifurcation of trial. Defendant has moved to bifurcate the trial into separate proceedings on liability and damages. That motion is GRANTED. In the first phase, the question will be whether Defendant violated MADA by terminating Plaintiff. If Plaintiff prevails on liability, the jury will hear evidence on the question of damages in a separate proceeding. Any evidence relating solely to damages will be inadmissible at the liability stage. Plaintiff may still introduce evidence involving the facts and circumstances of Plaintiff's termination as necessary to establish liability. 2. Exclusion of Exhibit 21 (email from Shaw to Mayes). Defendant has moved to exclude Exhibit 21 on grounds of attorney-client privilege. That motion is GRANTED. Pursuant to Swift v. Schlichting (2003), the court finds that there was an attorney-client relationship between the parties to that email at the time it was sent and that the exhibit is thus privileged. The court specifically rejects the argument that disclosure of Exhibit 21 to various witnesses in this case and references to Exhibit 21 in various affidavits, reports, and depositions have themselves waived further application of the privilege. Any reference to Exhibit 21 by either party during the trial is strictly forbidden and will be grounds for a mistrial and sanctions against any attorney who mentions, alludes to, or asks any witness about Exhibit 21 or conducts the direct examination of any witness who mentions Exhibit 21 during either direct or cross examination. Revised 12/4/16 CIRCUIT COURT OF MIDLANDS Riley Winter, Case No. CV 11-715 Plaintiff, v. Judge Rachel Oliver TBD, Inc., Defendant. Pretrial Order (Damages) Order filed: August 15, 2016 1. Single trial on liability and damages. Defendant has moved to bifurcate the trial. That motion is DENIED. The trial in this case will have a single phase, involving both liability and damages. 2. Admissibility of Exhibit 21 (email from Shaw to Mayes). Defendant has moved to exclude Exhibit 21 on grounds of attorney-client privilege and various other bases. That motion is DENIED. Pursuant to Swift v. Schlichting (2003), the court finds that there was no existing attorney-client relationship between parties to that email at the time it was sent and that the exhibit is thus unprivileged. The court also hereby OVERRULES any and all objections to Exhibit 21 based on hearsay, relevance, MRE 403, MRE 404, lack of foundation, and other grounds. All of defendant's objections to the admissibility of Exhibit 21 are deemed preserved for any potential appeal and may not be renewed at trial. Revised 9/23/16 CIRCUIT COURT OF MIDLANDS Riley Winter, Case No. CV 11-715 Plaintiff, v. Judge Rachel Oliver TBD, Inc., Defendant. Deposition of Riley Winter Taken: August 4, 2016 1 Examination by Kim McGill, for Defendant. Witness represented by Saul Bestman. 2 The deponent herein, after having been first duly sworn, testified as follows: 3 Q. Please state your name. 4 A. Riley Winter. 5 Q. Are you currently taking any medication? 6 A. No. 7 Q. Is there any reason you can't give accurate testimony today? 8 A. No. 9 Q. What is your birthday? 10 A. November 20, 1965. 11 Q. Are you married? 12 A. No, I am not. I've never been married. 13 Q. Where do you live? 14 A. 23 Maple Street in Fairview, Midlands. 15 Q. Do you have any children? 16 Bestman: Objection, relevance. Please tell me why that matters. 17 Q. Please answer the question. 18 A. No. I've never been a parent. 19 Q. Please describe your education, starting with after high school. 20 A. I attended Northwestern University. I graduated in 1988 with a degree in journalism. 21 Q. Please describe your employment history. 1 Revised 9/23/16 22 23 24 A. I started work at TBD July 14, 1988 as a junior copy editor. I was promoted to copy editor in December 1988, to staff writer in 1990, and senior staff writer in 1997. On December 23, 2015, I was fired. 25 Q. What is the difference between staff writer and senior staff writer? 26 27 A. Senior writer gets paid more, gets a longer leash with word counts, gets the best assignments and topics, gets a bigger budget when researching a story. 28 Q. Please list all of the awards or professional honors you've received. 29 30 31 32 33 34 A. AAJ, the American Association of Journalists, named me culture writer of the year three times, in 1998, 1999, and 2006. The Thoughtful Young Leaders Assembly, TYLA, included me in their Who's Who every year between 2000 and 2010. I was nominated for a Pulitzer Prize in 2008 for my long form article \"Aaron and Barack,\" which explored how people are often defined by how they compare to their predecessors. I've received other honors, but those are the most notable. 35 Q. Did you ever have a written employment agreement or contract with TBD? 36 A. No, never. 37 38 Q. I am showing you Exhibit 3. Is this a fair and accurate copy of TBD's People Policy, dated January 16, 2014? 39 40 A. Yes. And that's my signature on the last page. I signed January 16, 2014. As far as I know, this is the most recent HR policy, the human resources policy. 41 42 Q. Paragraph 3 of Exhibit 3 says every employee is at-will. Were you an at-will employee at TBD? 43 A. Yes. 44 Q. What do you understand that to mean? 45 Bestman: Objection, relevance. It means what it means. 46 Q. You can answer. 47 A. It means I could quit at any time. 48 Q. It also means TBD could terminate your employment at any time, right? 49 Bestman: Objection, speculation, calls for legal conclusion. You can answer if you know. 50 A. TBD could fire me as long as it didn't break the law. 51 Q. Did any terms of your employment change over time? 52 Bestman: Objection, calls for legal conclusion. You can answer. 53 A. Just the salary. It went up. Oh, and obviously my job title has changed, as I said. 54 Q. What was your salary when your employment was terminated in 2015? 2 Revised 9/23/16 55 A. Two hundred thousand dollars per year. 56 Q. How did that compare to other writers at TBD? 57 A. Management told me that I was the highest paid employee other than Shaw. 58 Q. How did that compare to writers at other magazines or newspapers? 59 A. I don't know exactly, but I was certainly paid more than the average writer. 60 61 Q. Much more, right? You know most magazine writers, online or otherwise, make less than a hundred thousand dollars? 62 A. That's true. Writers have always been underpaid. 63 64 Q. I'm showing you Exhibit 17. Is this a fair and accurate copy of the letter you received December 23, 2015 from TBD's editor in chief, Austin Perez? 65 A. Yes. This is the letter I received after Austin told me I was fired. 66 Q. How did Austin Perez communicate that decision to you? 67 68 69 70 A. On December 23, 2015, Austin Perez asked me to come into Austin's office. This was about 11:45 am, about 15 minutes before the holiday party. I thought I was about to get my bonus. Austin closed the door. Austin said, \"I'm sorry, TBD is moving in another direction. Today is your last day.\" 71 72 73 74 75 76 Austin handed me Exhibit 17 and a final paycheck. I told Austin, \"I don't believe this. I'm a senior writer.\" Austin said, \"that's part of the problem.\" I said, \"what does that mean?\" Austin looked embarrassed, like that was the wrong thing to say. Austin said, \"Riley, you're an incredible writer. The best I've ever worked with. But this decision comes from on high.\" I asked, \"so why am I being fired?\" Austin said, \"the company is going in another direction, that's all I can say.\" 77 Q. Do you recall anything else about that conversation? 78 A. No. It's a miracle I remember that much. I was so upset my hands were shaking. 79 80 Q. Apart from the conversation, did you ever have any other conversations with TBD management or ownership concerning your termination? 81 A. No. 82 Q. Have you been employed at all since TBD terminated your employment? 83 A. No. 84 Q. Why not? 85 86 A. Combination of things. The industry has changed a lot. Shaw's comments paint me as old and out of touch. And, frankly, I've been too depressed to seriously look for work. 87 Q. Have you done any freelance writing since TBD terminated your employment? 88 A. No. Same reasons. 3 Revised 9/23/16 89 90 Q. Let's break down the alleged reasons you haven't worked since the termination. You said the industry has changed a lot. What do you mean? 91 92 93 A. The journalism industry. A lot of newspapers and magazines have folded. A lot have moved from paper to digital, sometimes exclusively digital. Many have reduced staff. There's so much free content online now, it's hard to make any money in journalism. 94 95 Q. I'm showing you Exhibit 19. Is this a fair and accurate copy of Shaw's comments that you were referring to, the ones that allegedly paint you as old and out of touch? 96 A. Yes. TBD published this on December 23, 2015. I printed a copy off the website. 97 98 Q. You said you've been too depressed to look for work. Have you been diagnosed with depression? 99 100 101 A. Post-traumatic stress disorder specifically. I've been seeing psychiatrist Cary Kramer. I haven't read Dr. Kramer's report, but Dr. Kramer told me I have post-traumatic stress disorder from being fired. 102 103 Q. Other than this alleged diagnosis, do you believe you've been depressed since your employment was terminated? 104 105 A. Yes. It's affected my eating, my sleeping, everything. I have no energy, no passion for anything, even things I used to love. 106 Q. What efforts have you made to seek work since your employment was terminated? 107 A. I've looked around. Talked to some people. 108 Q. Talked to who? 109 A. I don't remember. I've gotten a few calls. I told them I wasn't ready. 110 Q. Calls from who? 111 A. I don't know. I wasn't ready. 112 Q. Do you have a resume? 113 A. Not yet. I'm going to do that. 114 Q. Are you on LinkedIn? 115 A. No. I never needed to be. 116 Q. Do you have a website? 117 A. Me personally? No. 118 Q. Let's talk about your employment with TBD. What type of articles did you write? 119 A. I was a culture writer. 120 Q. What does that mean? 4 Revised 9/23/16 121 122 A. I wrote about current events, technology, music, TV, movies, sports, celebrities, politics. 123 Q. That's a lot to keep up with. 124 A. It was. 125 Q. How did you do that? 126 127 A. I read a lot. I took an interest in what was happening in the world. I thought about it. I wrote about it. 128 Q. Who was your audience? 129 A. Whoever read TBD. 130 Q. No, I mean, who was your audience? Who was Riley Winter's audience? 131 132 A. I didn't have a particular demographic. I wasn't, say, targeting moms over 40 or college students who wanted to speak truth to power. I was just writing honestly. 133 Q. But who were you writing for? Who did you imagine reading your work? 134 135 A. I wrote about what interested me. My goal was the same ever since I started back in 1988. Write the type of article I would want to read. 136 Q. And what type of articles did you want to read? 137 A. Depends on when. I wanted to read something current. Something candid. 138 Q. How many articles did you write? Approximately. 139 140 141 142 143 A. It changed over time. When I started out, TBD was a weekly magazine. I wrote one article a week. That's 50 pieces a year from 1987 to 2013. That's what, 1200 articles? I wrote probably 40, 50 more that were just published on the TBD website. In 2013, Shaw bought TBD and we went fully digital, no more print distribution. I had to write a lot more. Probably three articles a week. 144 Q. Why? 145 A. Because we went from weekly distribution to constant, 24-7 distribution. 146 Q. Did anyone tell you that you needed to write articles more frequently? 147 148 A. Of course. It felt like our editor, Austin Perez, was pushing me for content almost every day. 149 Q. Was that hard? 150 151 152 A. It was. It wasn't hard to summon the energy. I loved writing. It was hard to find that many new topics each week. I didn't want to repeat myself. I didn't want to write what everyone else was writing. 153 Q. So as you got older, the job became harder? 5 Revised 9/23/16 154 A. That's not what I said. 155 156 Q. Other than the frequency with which you would complete articles, were there any other changes once TBD switched to online only in 2014? 157 A. The quality went down. Everything we'd worked so hard to build turned into drivel. 158 159 Q. Let me ask the question a little differently. What operational changes did you see at TBD once it switched to online only? 160 161 162 163 164 165 A. First, there was a reduction in staff. When Shaw bought TBD in January 2014, the first thing Shaw did was fire more than 40% of our writersin one day, we went from 31 writers to 19. Then Shaw told everyone they were welcome to work from home. Shaw said this was a privilege, we could be more comfortable. Shaw also said this would allow TBD to recruit more writers across the country, not just those who wanted to live in Midlands. Obviously Shaw just wanted to reduce office space and overhead. 166 Q. Did you start working from home? 167 168 169 170 A. No. I'd worked in an office my whole career. I relied on staff for research. I also appreciated the camaraderie. I could pop into an editor's office, run some ideas by him or her, show drafts to my colleagues. Bloggers work from home. Real writers work in an office, at a desk. 171 Q. Did TBD's content change when it went online only? 172 A. Absolutely. Absolutely. Our content became sillier, more sophomoric. 173 174 Q. But isn't there something inherently light about pop culture? You're not writing about economic theory, right? 175 176 177 178 A. Sure. But culture writing can be intelligent. You can write a fluff piece about who Taylor Swift is dating. Or you can write a thoughtful piece about how Taylor Swift controls her own narrative by being less private. Or evaluating whether her fans will change as she gets older and her lyrics inevitably become more adult. 179 180 Q. I'm showing you Exhibit 2. Is this a fair and accurate copy of Shaw's speech from January 2, 2014? 181 182 183 184 A. Yes. We knew around Christmas 2013 that Shaw was trying to purchase TBD. The deal closed on New Year's Eve and on January 2, 2014, Shaw showed up at the office. Shaw gave a speech to all of the employees. Exhibit 2 is that speech. I know that because after the meeting, Shaw emailed us the text of the speech. 185 Q. What else do you remember about January 2, 2014? 186 187 A. After the meeting ended, Shaw started firing TBD employees, mostly the older employees, but a few younger ones, too. By lunch more than a third of our staff was gone. 188 189 Q. Exhibit 2 states a goal of TBD was moving toward fresher content. Did anyone at TBD tell you to change your content? 6 Revised 9/23/16 190 191 192 A. All the time. Austin told me. Shaw told all of the writers. They said an online audience is always younger than a print audience. They said we needed to work extra hard to court younger readers because we needed to shed our image as a stiff print magazine. 193 Q. Did you agree with that? 194 A. No. Good writing is good writing. 195 196 Q. Why did Austin Perez and Sawyer Shaw need to tell you all the time that your content needed to be changed? Why wasn't once enough? 197 A. When you're used to using your brain, it's hard to turn it off. 198 199 Q. I'm showing you Exhibit 4. Is this a fair and accurate copy of the performance evaluation you received from TBD on December 1, 2014? 200 A. Yes. That's my signature. 201 Q. Please identify everything in this performance evaluation with which you disagree. 202 203 204 A. I disagree with the implicit notion that our readers are shallow. I disagree with the unstated job requirement that I need to attend company events clearly geared toward younger employees. Everything about this evaluation is ageist. 205 Q. How, if at all, did you attempt to change your performance in response to Exhibit 4? 206 207 208 A. I tried to write about even more contemporary topics. I asked for authorization to attend a social media training program. Shaw had made it clear that TBD wanted to aim younger, and even if I didn't agree with the philosophy, I was willing to play along. 209 210 Q. I'm showing you Exhibit 5. Is this a fair and accurate copy of your request to participate in a social media training program? 211 A. Yes. 212 Q. How, if at all, did TBD respond? 213 214 215 216 217 218 A. Austin Perez stopped by my office a few minutes later and told me to sign up for the seminar and that TBD would reimburse me. Austin said, \"Thanks for taking the initiative. I appreciate the positive attitude.\" But at our next staff happy hour, later that week, Austin teased me about the social media training in front of the staff. Something like, \"Hey, everyone, Riley is gonna join The Facebook.\" Sawyer Shaw wasn't there, but it seemed like everyone else from TBD was. 219 220 Q. Did you ever complain, formally or otherwise, about Austin Perez's alleged statements at the happy hour? 221 A. No. I didn't want to seem like a whiner. My generation was taught to have thick skin. 222 Q. What generation is that? 223 Bestman: Objection. My client is not answering that. Next question. 224 Q. It was a perfectly fair question. Just trying to understand the witness's turn of phrase. 7 Revised 9/23/16 225 Bestman: Next question, counsel. 226 Q. Did you attend the social media training described in Exhibit 5? 227 A. Yes. It was a waste. I knew all of it already. 228 229 Q. I am showing you Exhibit 6. Is this a fair and accurate email from Sawyer Shaw to all TBD staff, including you, on April 27, 2015? 230 231 232 A. Yes. TBD was a few days from its 50th birthday. The business team had organized a huge party at Miller Tower. We'd invited top advertisers, some celebrities, it was going to be big. But Shaw put a stop to that. 233 Q. Do you contend that Exhibit 6 supports your claim in this case? 234 235 236 A. Of course it does. As soon as I read it, it was another reminder that Shaw and TBD wanted to get rid of anything that reminded people we were established and experienced. Look at the words Shaw uses. This made me worry for my job. 237 Q. To whom did you complain or otherwise discuss Exhibit 6 before you filed this suit? 238 A. No one. 239 240 Q. I'm showing you Exhibit 7. Is this a fair and accurate copy of an email Sawyer Shaw sent to all staff on August 12, 2015? 241 A. Yes. This is blatant age discrimination. 242 Q. Isn't this just lighthearted teasing? Showing you're just part of the team? 243 A. No. This is blatant age discrimination. I was extremely hurt by this. 244 Q. Did you ever complain, formally or otherwise, about Exhibit 7? 245 A. No. I didn't want Shaw to think I couldn't take a joke. 246 Q. So you consider it a joke? 247 A. Of course it's a joke. Doesn't mean it's funny. 248 249 Q. I'm showing you Exhibit 8. Is this a fair and accurate copy of a birthday card you received November 20, 2015? 250 A. Yes. On my 50th birthday. More blatantly ageist comments. 251 Q. Did you ever complain, formally or otherwise, about Exhibit 8? 252 A. No. 253 254 Q. I'm showing you Exhibit 9. Is that a fair and accurate copy of a performance evaluation you received from TBD on December 1, 2015? 255 A. Yes. This is the second and final performance evaluation I received from TBD. 256 Q. Please state everything in Exhibit 9 that you characterize as inaccurate? 8 Revised 9/23/16 257 258 259 260 261 262 263 264 265 A. I don't believe that TBD truly recognized my improvements and efforts to follow their mandates. I don't agree that everyone enjoyed getting to know me because Skye Martin and Sawyer Shaw never made an effort to get to know me. I don't believe that TBD management had any interest in diversity, at least not with respect to age. And I don't agree with the assessment that my work needed a fresher approach or that there is something problematic about referencing Bob Dylan while discussing a contemporary musician. TBD cannot really be taking the position that art can be discussed thoughtfully without any historical references. That's absurd and shows you the mindset of the people running TBD. 266 267 Q. I am handing you Exhibit 10. Is this a fair and accurate copy of your final article for TBD? 268 269 270 271 272 273 A. Yes. This is the last article of mine that TBD published. It's about a music company called TURNTable. They offer online, on-demand music with a huge library. It learns what you like and recommends new music. In 2015, I pitched and wrote (and Austin Perez approved) an article criticizing TURNTable because music appreciation shouldn't come from an algorithm. It should come organically, from friends, from the radio, from new experiences. 274 275 Q. Are you aware that after you wrote this article, TURNTable threatened to stop advertising with TBD? 276 277 278 279 280 281 A. I know that's what TBD claims. TURNTable is owned and run by Adrian Edwards. I'm sure Edwards didn't like the article. But lots of people write articles criticizing companies. Not every CEO tries to get the writer fired. I'm certain Edwards is just saying that now to justify Shaw's decision to fire me. Shaw and Edwards are good friends, everyone knows that. Besides, why didn't TURNTable call for Austin Perez's head? I wasn't the editor who approved the article. 282 283 284 Q. I'm showing you a two-page document, Exhibit 11. Is this a fair and accurate copy of an email you sent to Austin Perez on December 16, 2015, as well as the draft article you attached to that email? 285 A. Yes. This is the last piece I wrote. It was never published. 286 Q. Why not? 287 A. Austin and I were still hammering out the details at the time Shaw decided to fire me. 288 289 290 Q. I'm showing you a two-page document, Exhibit 12. Is this a fair and accurate copy of an email you received from Austin Perez on December 16, 2015, as well as an attachment showing Austin Perez's edits to the same article in Exhibit 11? 291 292 A. Yes. Austin gave me these suggestions on December 16, 2015. Like I said, we were still hammering out the details. 293 294 Q. I'm showing you Exhibit 13. Is this a fair and accurate copy of an email you sent to Austin Perez on December 16, 2015? 295 A. Yes. Collaboration between editor and writer is important. 296 Q. What do you think of Austin Perez as an editor? 9 Revised 9/23/16 297 A. Austin is good. A little young, but good. Solid judgment. 298 299 300 Q. I am showing you Exhibit 18. Is this a fair and accurate list of all writers at TBD from January 1, 2014 to December 23, 2015, including their dates of birth, dates of hire, and dates of departure? 301 302 303 304 A. I've never seen this document before, but let me read it. Yes, these are all the writers employed by TBD during that time period. Yes, all the birthdays, hire dates, and departure dates look right. Though I can't verify anything about the Landon Greene information. But everything else looks correct. 305 306 Q. I am showing you Exhibit 22. Is this an accurate record of the web traffic and social media data associated with your articles in 2015? 307 308 309 310 311 312 A. I've never seen this document before. But TBD did give writers weekly updates on the web performance of their articles. Everything in Exhibit 22 looks accurate with respect to my articles. I can't say whether the data regarding other writers' articles is accurate because I was never shown that data. But people talk, and the numbers are at least roughly consistent with what I heard from my colleagues. I was publishing about as often as the other writers, and my articles generated average retweets and above average clicks. 313 Q