Strategies For Drafting Short, Efficient Decisions – And Doing It Quickly! Administrative Judge Darryl Edwards, Charlotte District Office Administrative Judge Sharon Alexander, Washington Field Office August 29, 2018

Overview Summary Judgment Decisions and Decisions After Hearing Identification of Good Candidates for Short Decisions Strategies for Concise Analyses Strategies for Efficient Decision Drafting on Summary Judgment And on Decisions Issued After a Hearing

Identifying Candidates for Short Decisions Discrete Issue(s) “Fatal Flaws” (No p/f case, for example) Lack of Evidence in Support of Nexus

Strategies for Concise Analyses Focus on relevant facts only Use simplest articulation of applicable legal standards Example – streamlined disparate treatment/hostile work environment language provided by OFO Example – bypass p/f analysis where Agency has articulated LNDR Example – bypass liability standards where HWE is not severe or pervasive Attend to “red herring” arguments briefly using footnotes (See Smalls, Chin Young, Hendrix, Taylor)

Strategies for Efficient Decision Drafting: Summary Judgment Notice of Intent to Issue Summary Judgment Short, plain language articulation of why it appears CP cannot prevail (See Applegate) If no response to NOI, or response doesn’t change analysis, brief decision incorporating by reference the grounds for SJ in the NOI (See Bonnette) Note – NOI can be vacated if response justifies it; CP gets due process! (See Sanichar) Pilot Project SJ Decisions Adopt entire motion if appropriate (See Thomas) Adopt just the facts or selected facts, citing additional facts if needed, and adding simple analysis (See Smalls, Taylor, MacKenzie) Attach the parties’ briefs when issuing “pilot project” SJ decisions “Traditional” Summary Judgment Decisions Can Also Be Short (See Chin Young)

Strategies for Efficient Decision Drafting: Decisions After Hearing Calendar Time for Hearing Prep, Hearing, and Decision Drafting Utilize Bifurcation Options Bifurcate hearing where parties agree relief can be determined through written briefing (examples: simple compensation discrimination claim, ADEA non-selection claim [no claim for compensatory damages or attorney fees] Where bifurcation is not appropriate, when possible, schedule days dedicated to the hearing on liability, subsequent days on relief; cancel the hearing with respect to relief if CP doesn’t establish liability Require Robust, Joint Stipulations Submitted with prehearing reports, these aid in hearing preparation and drafting of the “facts” section of the decision Consider requiring the parties to identify the specific facts in dispute

Strategies for Efficient Decision Drafting: Decisions After Hearing Bench Decisions Prepare for every hearing as though you will issue a bench decision – you will be better prepared and able to focus the hearing on the facts you need to find “Rough out” the decision in advance of the hearing – include stipulated facts, place holders for facts to find, legal standards, and treatment of any claims resolved through partial SJ Issue bench decisions whenever possible – shorter turn around, saves time by avoiding the need to cite to the hearing transcript (See Buck, Boykins, Kelley) Where Bench Decision Isn’t Possible, Draft as Soon as Possible After the Hearing “Brain dump” key impressions, credibility determinations, directly after hearing Write decision while case is still fresh in your mind; ensure time blocked for drafting immediately after the hearing and again once transcripts are expected to come in Quasi-bench decisions: meet with parties immediately after hearing and calendar date certain to read decision (within 10 days or so of hearing)

Strategies for Efficient Decision Drafting: Decisions After Hearing Where Bench Decision Isn’t Possible, Draft as Soon as Possible After the Hearing “Brain dump” key impressions, credibility determinations, directly after hearing Write decision while case is still fresh in your mind; ensure time blocked for drafting immediately after the hearing and again once transcripts are expected to come in Quickly address issues adjudicated on partial SJ; avoid citation overload; (Patterson, Carter) Use previous tips (limit to relevant facts, use joint stipulations)

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