Coleman Smith

Occasionally people who post in this news group are concerned about religious discrimination in public institutions and in quasi-private places like the work place.

The purpose of this post is to share with the group some of my experiences with litigation and to suggest when and how to prepare a case for trial.

The situations that I have in mind are the situations where public school teachers engage in overtly religious practices which violate the separation of church and state and may subject the non-believer or member of a non-dominate religion to religious discrimination and / or harassment.

For back ground information the readers should know that I am not an attorney although I have about 35 years of experience in preparing files for litigation by the gathering and preservation of evidence, participation in attendance at trials, participation in court mandated mediation, and from time to time the supervision of litigation for various clients.

How a non-lawyer becomes a litigation supervisor has to do with the vagaries of the insurance business.

The first suggestion that I make is to pick your cases carefully and make sure that the infraction merits a response.

The second suggestion is that before taking any of these actions one should consult with an attorney and preferably report to and be guided by the lawyer. This makes sure that the actions taken in your jurisdiction are legal and most likely will result in the details of your investigation being subject to attorney � client privilege.

The third suggestion I make is to spend a considerable amount of time and effort in preparing the case for trial by gathering evidence even though the case may never be fully litigated. Failing to prepare for a trail is to invite disaster.

The preparation may consist of keeping a journal of the events listing the date time and place of the infractions, the names and personal identification of all the witnesses, sub rosa recordings (where legal) and sub rosa photographs when illegal items are posted on bulletin boards.

The use of a camera that date stamps the images should be used.

Recordings can be date stamped by recording school announcements.

Once a recording has been made the non-record tab should be removed and the tape placed in a lock box at a bank where there is a record of the parties who have had access to it.

The third suggestion that I make is to try and use the least draconian method of dealing with the problem possible.

If a school teacher is involved, then after the evidence has been gathered over a extended period of time (3 months minimum) a polite letter to the principal preferably written by an attorney with copies to the teacher, the ACLU, the local school board and to other organizations of choice (Americans United) should follow.

If this is brings about the desired results and the offenders agree to cease and desist then a confirmation letter confirming the agreement should be served on the adverse party by certified mail � return receipt requested with copies to the various parties.

This places the agreement on the record before the interested parties.

Any meetings that you are asked to attend by the school system at any level should be recorded.

In the event less strident approaches fail a formal complaint should be filed with the ACLU and other interested organizations with news releases approved by the ACLU and your attorney should be give to the local newspaper.

The ACLU is likely to start with the least amount of effort consistent with the infraction moving from warning letter to litigation.

The cost effect of the litigation should not be underestimated.

Attorney fees exceeding $ 750,000.00 is not uncommon in celebrated cases and may exceed several $ million.

It is significant that these numbers cited above are only for attorney�s fees alone. They have nothing to do with the cost of settlements, court cost, expert fees are other litigation expenses.

The point of this is to point out that the threat of litigation involves more that just the expected out come of the litigation.

It involves significant revenues and the allocation of other significant resources.

Most of the money and time is spent in what is called pre-trail discovery.

This involves serving and answering interrogatories, producing evidence in the form of copies of various documents, and the taking of depositions from both lay witnesses and experts.

The plaintiff may file a motion to take the deposition of every student who has ever been a student of the offending teacher. The defendant will most likely file a motion to limit the number of depositions and then the numerous Hearings before the judge on procedural matters begins.

If the ACLU agrees to take the case, and they may not, then they become your proxy and the litigation expenses of the plaintiff become their expenses, not yours.

This gives the poor and disadvantaged a voice in the courtroom.

Finally, settling a claim by litigation has advantages even if it is not fully litigated to a final verdict.

The reason for this is that the issues may be resolved by what is known as a consent decree.

The consent decree may include stipulated sanctions for future infractions.

Whether or not the judge will grant them, a proposed stipulated sanction of $ 10,000,000.00 per future infraction has a way of making a defendant sit up and pay attention

When considering the infractions that occur in the work place one in confronted with the problem that the employer may have the defense that the employer is private and not subject to the same rules as the public employers.

This may or not be a defense and legal consultation is in order.

The use of sub rosa recordings and photographs my not be legally permissible and / or admissible in that circumstance.

One should determine whether or not the employer has contracts with the Federal and State governments.

Most of the time those contracts require the contractor to comply the same rules that apply with the public employment sector. If the employer has contracts for goods and services with the state and federal government engaging in any kind of illegal discrimination can lead to a loss of those contracts and the inability to qualify for them in the future.

Coleman Smith
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The assertion that the universe is surrounded in grape jelly is more creditable than the assertion that we are the immortal pets of some deity.

Viti

Thank you for the great info! I think this will be seen more in the CSS&SA forum.