1. 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

2. 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

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

4. 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)

5. 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)

6. 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

7. 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)

8. 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)

9. QUESTIONS/DISCUSSION