#SpeakerSpotlight: Saturday’s Annual Convention Speakers

Don't Panic, It's Organic.

ATLA’s 2018 Annual Convention is April 26 – 28, is just a few weeks away. For the ATLA family, Convention is a wonderful time to cultivate friendships and grow as attorneys. As the anticipation around Convention builds, so does the excitement about our featured speakers!
Join us at ATLA’s Annual Convention to hear innovative, trailblazing speakers including: Jim Mitchell All Things Voir Dire, Jenny Greene presenting Trial Lawyer Inc: How We Protect Our Profession as a Brand with Our Everyday Actions, Rhonda Davis answering all your questions about Medicare Set Asides, and Breean Walas asking Who Needs A Vacation? Click here to register.

Jim Mitchell has extensive experience in representing clients seeking to recover damages in significant personal injury and wrongful death cases. He formed Payne Mitchell Law Group with Andy in 2007. Jim’s practice areas include product liability, medical malpractice, general negligence, nursing home negligence and class actions. Over the course of his 25+ years as a trial lawyer, he has handled all types of catastrophic injury and death cases and tried dozens to jury verdict. He achieved a landmark $38 million verdict against GM for a defective airbag case — the first of its kind in the country. Jim has proved that he is willing to take a case to court to bring justice to injured victims and has helped hundreds of families in serious cases over the last 25 years.

 Jenny Greene graduated from Rhodes College in Memphis, TN with a B.A. in History and a B.A. in Political Science. She graduated from the University of Arkansas at Little Rock School of Law in 2003. She also studied at Tulane University Law School. Her practice focuses on multi-district litigation, high-asset divorces, and personal injury matters.  She is special counsel to Scott, Hair, Vicknair & Checki, LLC. She is active in Louisiana Association of Justice, AAJ and numerous civic and non-profit organizations.  Ms. Greene is an alumnus of the AAJ Leadership Academy and the Institute of Politics at Loyola University.

Rhonda Davis pursues cases in personal injury, medical malpractice, legal malpractice, and nursing home litigation. Rhonda has offices in Akron, OH and Marked Tree, AR. Raised on a small farm in Bono, AR, she graduated from Arkansas State University. She received a Rotary International Graduate Scholarship to Macquarie University Law School, Sydney, Australia and graduated from University of Mississippi Law School. Rhonda served as an Assistant Attorney General in Tennessee’s Antitrust Division, prosecuting bidriggers and pricefixers.

Breean Walas, Esquire, has a B.A. in American Studies from Cornell University, where she was a four-year starter on the women’s basketball team. She graduated from the University of Cincinnati College of Law in 2005 and that same year moved to North Little Rock to clerk for Associate Justice Donald Corbin of the Arkansas Supreme Court. Breean founded Walas Law Firm, PLLC. As an ATLA member, Breean serves on many Committees and is a past recipient of the ATLA President’s Award.  She also is a member of the Order of the Barristers as well as the Arkansas Bar Association, National LGBT Bar Association, and Public Justice Foundation .

 

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#SpeakerSpotlight: Friday’s Annual Convention Speakers

Don't Panic, It's Organic. (1)
ATLA’s 2018 Annual Convention is April 26 – 28, is less than a month away. For the ATLA family, Convention is a wonderful time to cultivate friendships and grow as attorneys. As the anticipation around Convention builds, so does the excitement about our featured speakers!  Click here to register today!
Join us at ATLA’s Annual Convention to hear innovative, trailblazing speakers including: AAJ  Parliamentarian Tad Thomas sharing Legal Technology for 2018 & Beyond, Morgan & Morgan’s Keenan Nix with Cross Examination: Mastering the Art of Deposition Taking, Special Needs Planning from Forge’s Peter Wayne, and Medivest’s Craig Pawley presenting Liability Medicare Set Asides & Professional Administration.

Tad Thomas is the founding partner of Thomas Law Offices in Louisville, KY.  His firm practices solely in the areas of civil litigation with a focus on medical device and pharmaceutical products liability, motor vehicle, trucking and motorcycle collisions and nursing home neglect and abuse.  He is very active in AAJ serving as Parliamentarian on Executive Committee and many other committees, sections and litigation groups.  He is a cum laude graduate of Salmon P. Chase College of Law at Northern Kentucky University and undergraduate degree from Georgetown College.

Keenan R.S. Nix is a partner of the trial law firm of Morgan & Morgan.  He graduated from the Wharton School of Business and The University of Pennsylvania School of Law. In 2016, Keenan led the trial team that won an $11 million dollar verdict against Papa John’s Pizza for brain damaging his client for life in a head on collision and refusing to accept responsibility for the wreck. That verdict was named one of the top 10 verdicts in the country for 2016.  His trial practice focuses on catastrophic injury, wrongful death, and business tort litigation. He was inducted into the Gate City Bar Association Hall of Fame in 2018.

Peter Wayne serves as an administrative and business development officer for the Forge Companies, while also serving as counsel to Advocacy Trust. He originally served as a settlement planner and attorney for Forge Consulting, then returned to the Forge after gaining experience at Wyatt, Tarrant & Combs, LLP and Stock Yards Bank & Trust Company.  Peter serves on the Board of Directors for Louisville Public Media the Louisville Bar Association as Secretary.He is also an advisory board member to Life Plan of Kentucky.

Craig Pawley is currently the Director of Sales for Medivest Allocation Services and Medivest Benefit Advisors. As an expert in this field, Craig has presented numerous training sessions on Medicaid Set Aside, Professional Admin, and SCHIP compliance to claims organizations, trial lawyer associations insurance carriers, attorneys, third-party administrators, and self-insured companies. Craig has worked in the MSP Compliance field since 2005 and has fostered the completion of over 4500 MSA allocations..

 

#SpeakerSpotlight: Thursday’s Annual Convention Speakers

ATLA’s 2018 Annual Convention is April 26 – 28, a month away. For the ATLA family, Convention is a wonderful time to cultivate friendships and grow as attorneys. As the anticipation around Convention builds, so does the excitement about our featured speakers! Join us at ATLA’s Annual Convention to hear innovative, trailblazing speakers including: Mark Lanier discussing “New Ways to Win at Trial,” Ken Connor with “Winning Your Case In Jury Selection,” Andy Payne “A Profitable PI Practice: Ideas on Case Acquisition, Evaluation and Profitability” and a Legislative Update from Chad Gallagher, Isaac Wright and Bob Edwards.

Fall is here!

Mark Lanier is an attorney, author, teacher, pastor and expert story teller. Since he founded The Lanier Law Firm in 1990, Mark has earned international recognition as one of the top trial attorneys in the United States, with firm offices in Houston, New York and Los Angeles supporting his work for clients across the country. Chairmen, company presidents and senior executives from major corporations and universities often call on him for his respected business views on national and international issues. An accomplished author, Mark recently published the books, Christianity on Trial and Psalms for Living: Daily Prayers, Wisdom, and Guidance.  Mark and ,his wife, Becky, have five children.

Kenneth L. Connor, a founding member of Connor & Connor, LLC, has been an active trial lawyer since 1972. Ken received his B.A. and his Juris Doctorate from Florida State University. Licensed to practice law in fourteen states and the District of Columbia, Ken has tried cases from Florida to California. Ken resides in Aiken, SC.

Andy Payne is the founding partner of Payne Mitchell Law Group. He is double Board Certified-Personal Injury Trial Law by the Texas Board of Legal Specialization and Civil Trial Law by the National Board of Trial Advocacy. He graduated at the top of his class from Baylor Law School, where he served as Editor of the Baylor Law Review. He is active member of  Dallas Trial Lawyers Association, the TX Bar Foundation and Dallas Bar Foundation, TX Trial Lawyers Association and AAJ Leaders Forum. He has served on the TX Bar Association and Dallas Bar Association Board of Directors.

 

Chad Gallagher, an Ouachita Baptist University graduate, became the youngest mayor in the nation in 1998.  He served as a policy adviser Gov. Huckabee for city, county and local affairs, oversaw the legislative war room, appointments to boards and commissions and intergovernmental affairs. His experience in the political world has made him well versed and nimble in public relations, strategic development, messaging and crisis control. In 2007, Chad launched Legacy Consulting. Through this venue he’s worked with leaders in the private and public sector both at every level.

Isaac Wright is a communications operative and strategist in campaigns and public affairs. He has appeared on CNN, Fox News Channel and countless other television and radio stations as a political commentator. As Communications Director in the Office of Governor Mike Beebe, he was the youngest in the country at that time. He has been described by columnists as “closed captioning for the candidate” and “overseer of the message. ”Specifically, his rapid response work was described in one news account as “stealing another candidate’s sunshine.”

Bob Edwards received his B.A. in Biology from Hendrix College . He earned his JD from the Bowen School of Law in 1998. He was an integral part of the successful team that worked to elect Attorney General Mark Pryor. He served as the Chief of Staff for Pryor. Before opening his own firm in 2013, Bob was with Wilkes & McHugh. His practice is focused primarily on nursing home and tractor-trailer litigation. He’s a member of ATLA, AR Bar Association, American Bar Association, and AAJ.

Register today by clicking here!

 

#ATLAFam Reunion-2018 Annual Convention

Ice Cream Party (1)
It’s an #ATLAFam Reunion! Feel the family love and join us at ATLA’s Annual Convention 2018: #ATLAFam! Reminisce about yesteryear with your ride or dies and welcome new members into the fold. While we’re enjoying relationships old & new, our speakers will lead us forward to learn the latest legal trends and trial methods to ensure you win your cases.  Register today by clicking here.
The networking, learning, and celebration at ATLA Convention is unmatched – don’t miss it! Check out the agenda below:
Thursday, April 26, 2018
9:30-11:30 ATLA Board of Governors Meeting
11:00 Registration Opens
11:30-12:00 Lunch Break
12:00 Convention Welcome & Opening
12:15-1:15 Legislative Update
Panel of Experts
1:15-2:15 Winning Your Case in Jury Selection
Ken Connor, Esquire
2:15-3:15 A Profitable PI Practice: Ideas on Case Acquisition, Evaluation and Profitability
Andy Payne, Esquire
3:15-3:30 Ice Cream Social
3:30-5:30 New Ways to Win at Trial
Mark Lanier, Esquire
5:30 Adjournment
5:30-6:30 Opening Night Reception
6:30 Elite Member Dinner
5:30-8:00 Hospitality Suite Open
Friday, April 27, 2018                        
7:30 Registration Opens/ Breakfast
7:45 Opening Announcements
8:00-9:00 Legal Technology Tools for 2018 and Beyond
Tad Thomas, Esquire
9:00-10:00 Cross Examination: Mastering the Art of Deposition Taking
Keenan Nix, Esquire
10:00-10:10 Break
10:10-11:10 Special Needs Planning
Peter Wayne, FORGE
11:10-12:10 Liability Medicare Set Asides and Professional Administration
Craig Pawley, Medivest
12:30 Awards Luncheon
2:00 Business Meeting & Officer Elections
2:30 IMPACT Meeting
3:00 New Lawyers Network Meeting
3:00-7:00 Hospitality Suite Open
7:30-10:00 Party for Incoming President, Jesse Gibson
Saturday, April 28, 2018
7:30 Registration Opens/ Breakfast
7:45 Opening Announcements
8:00-9:00 Who Needs a Vacation? The Ethics of a Balanced Life*
Breean Walas, Esquire
9:00-10:00 Voir Dire
Jim Mitchell, Esquire
10:00-10:10 Break
10:10-11:10 Medicare Set Asides
Rhonda Davis, Esquire
11:10-12:10 “Trial Lawyer, Inc.” How We Protect Our Profession as a Brand with Our Everyday Actions*
Jenny Greene, Esquire
12:10 CLE Adjournment
*Ethics Hour
Convention will be held at the Best Western Inn of the Ozarks, located at 207 West Van Buren in Eureka Springs, Arkansas. Book your room today by calling 479-253-9768 and asking for the ATLA room block.
Register today by clicking here See you there!
Invite a friend to ATLA Convention by sharing our Facebook event with your friends and colleagues!

POLICY RESPONSES TO SEXUAL HARASSMENT, ASSAULT, and RAPE

This article originally appeared in the Winter 2018 ATLA Docket.

POLICY RESPONSES TO SEXUAL HARASSMENT, ASSAULT, and RAPE

By Ross Noland[1]

Introduction

Harvey Weinstein. Roger Ailes. Bill O’Reilly. Kevin Spacey. Louis C.K. Glen Thrush. Roy Moore. Russell Simmons. Brett Ratner. Al Franken. Matt Lauer. George H.W. Bush. Charlie Rose. Those accused of sexual harassment, assault, and rape in the past in the past few months know no societal or political bounds. Trusted names and faces are accused of committing terrible acts. Victims will expose more assailants before this article is published. Our nightly news and social-media feeds highlight the scope and severity of a sexual harassment, coercion, and violence epidemic. A recent ABC News-Washington Post poll revealed that more than half of all American women report being the target of “unwanted and inappropriate sexual advances,” with more than 30% of those respondents identifying men in positions of power and influence over their careers as the culprits.[2] 95% of those alleged assailants are unpunished.[3]

Sexual harassment and assault in the workplace and public spaces is illegal. Federal Courts interpret Title VII of the Civil Rights Act’s prohibition against employer discrimination based on sex to include sexual harassment.[4] Aggrieved employees may file a complaint with the Equal Employment Opportunity Commission (EEOC) alleging an employer sought either a quid pro quo of sexual favors for favorable employment decisions, or created a hostile work environment through unwanted and offensive sexual harassment.[5] The Arkansas Supreme Court interprets the Arkansas Civil Rights Act to similarly prohibit sexual harassment.[6] Arkansas also criminalizes sexual assault, establishing the crime of sexual assault in the first through fourth degrees, with punishments ranging from a Class A to a Class D felony.[7]

The purpose of this article is not to review the current law, but rather to suggest how Arkansas policy makers may engage in proactive work to improve state law as it pertains to sexual harassment, assault, and rape. This includes legislation needed to create sexual harassment prevention and reporting training, establish a state agency for processing employment discrimination claims, closing the aggravated residential burglary sexual assault loophole, and providing rape shield protection in civil cases.

Train Government Employees to Prevent Sexual Harassment

State government is the largest employer in Arkansas.[8] Requiring sexual harassment reporting and prevention policies in agencies, courts, and commissions will set an example for private employers and individuals alike. An ideal place to begin implementing such rules is our chief policy making body: the Arkansas Legislature.

State legislatures throughout the country are grappling with allegations of rampant sexual harassment by their members. Staffers, lobbyists, and legislators themselves state a toxic culture of sexual harassment exists in Texas,[9] California,[10] Illinois,[11] Massachusetts,[12] and Florida[13] and other states. Arkansas should act now to root out any such behavior, and proactively prevent it through sexual harassment reporting and prevention training and enforcement.

The Texas House of representatives acted quickly to revise its Policy and Procedures Manual in the wake of scandal in their state house.[14] The new policy require new hires receive sexual harassment prevention training within 30 days of beginning employment, and every two years afterwards, while making reporting avenues clear and available.[15] Several state legislatures, including Colorado[16] and California,[17] have robust rules in place either through policy or statute. A review of these rules and others provides several tenets of what a thorough sexual harassment reporting and prevention policy in the workplace (be it the legislature or a private company) must contain:

  • Mandatory sexual harassment reporting and prevention training within thirty days of hiring.
  • Clear definitions and examples of what constitutes sexual harassment which closely track the EEOC definition.[18]
  • Readily available and defined points of contact for receiving complaints.
  • Investigation and documentation timeframes and policies.
  • Cast a wide net on who is subject to the rules, such as requiring lobbyists and state agency government affairs officers to comply with training programs as a condition of their registration or employment.
  • Employment, whistleblower, and mental health safeguards and protections for victims, including information on criminal civil justice options.
  • Penalties for engaging in sexual harassment.

Additionally, sexual harassment reporting and prevention policy is best adopted through laws and regulations, as opposed to relying on best practices and employee handbooks or manuals, to encourage uniformity in practice and availability to the public.

Arkansas has not attracted the national attention and reporting of sexual harassment in the state house that many of its sister states have, but one sitting representative, Vivian Flowers, related publicly that she experienced sexual harassment as an employee of the House in years past.[19] Rep. Flowers states “grown men put their hands on me.”[20] The article also quotes Rep. Greg Leding as stating he witnesses acts “all the time” that make him uncomfortable.[21] The time for the Arkansas Legislature to act to implement a viable sexual harassment policy is now, before more people are harmed and harassing behavior is exposed in the media without a competent policy response in place.

Establish a Fair Employment Practice Agency in Arkansas

Arkansas is one of only three states[22] without a state agency designated as a Fair Employment Practice Agency (FEPA) by the EEOC. This lack of a state agency, such as the “Arkansas Commission on Civil Rights,” or the “Arkansas Equal Rights Commission,” has several impacts on the ability of sexual harassment victims to pursue claims.

The most practical limitation created by Arkansas’s lack of a FEPA is the applicable statute of limitations. Title VII of the Civil Rights Act generally requires a complainant to file within one-hundred and eighty days of the sexual harassment or other unlawful employment action.[23] As plaintiff’s attorneys, we know it is difficult to find a client, engage them, investigate the case, and file a complaint in a truncated one-hundred and eighty day period. However, when a state has a FEPA designated agency, the time limitation for filing a complaint is extended to three-hundred days.[24] A second practical impact is the availability of resources and reporting avenues for Arkansas residents. A FEPA designated agency would allow more Arkansans to seek, in a timely manner, investigation into unfair employment practices.

The United States Commission on Civil Rights prepared a 2015 report examining Arkansas’s lack of a FEPA.[25] The report, while discussing comments made by the director of the EEOC’s Little Rock District Office, characterized the situation as a “sub-standard level of protection in comparison to most other states.” Arkansas can do better, and eliminate itself from at least one list we share with Alabama and Mississippi, by providing those suffering employment discrimination, including sexual harassment, an avenue to justice sponsored by its state government through a FEPA compliant agency.

 Close the Residential Burglary Sexual Assault Loophole: Inskeep v. Arkansas

 In April 2014, Nathan Inskeep followed a Marmaduke woman home from the grocery store and entered her home uninvited while naked from the waist down and masturbating.[26] He chased her through her home while she attempted to fight him off.[27] Her infant daughter, who she was holding during the ordeal, suffered minor injuries.[28] Inskeep fled when the woman’s husband awoke and chased him out of the house, and the police soon apprehended him.[29] A Greene County jury later convicted him of aggravated residential burglary. The conviction would not, however, stand.

On March 2, 2016, the Arkansas Court of Appeals issued an opinion finding insufficient evidence that Inskeep “intended to cause serious physical injury,” when he attempted to sexually assault the woman.[30] Intent to cause serious physical injury is a requirement to establish aggravated residential burglary, and thus receive a higher sentence.[31] The Arkansas Supreme Court denied a petition review on May 5, 2016.[32] As a result, intent to commit sexual assault is not enough, under Arkansas law, to constitute aggravated residential burglary without additional proof of the attacker’s intent to cause serious physical injury. The Court cut Mr. Inskeep’s sentence in half, finding him guilty of a lesser offense.

Media outlets reported that public response to the decision was adverse, quoting Second Judicial District Prosecuting Attorney Scott Ellington as saying that “from all the calls and messages that I received, the public is outraged by this decision to reduce this charge considering the facts that were made.”[33] The public, as a whole, is not responsible for statutory language allowing a sexual assault to escape heightened sentencing. Its elected officials are.

The legislative solution to this loophole is simple: amend Arkansas’s aggravated residential burglary statute to include the “intent to commit sexual assault” as an additional aggravating factor. This is a straightforward legislative action which will show Arkansas does not tolerate sexual assault.

Civil Rape Shield

Statistics vary according to source, but on average, only one in three sexual assaults are reported to police.[34] Barriers to reporting, and in turn pursuing justice, are many, but common ones include shame or embarrassment, confidentiality concerns, and fear of not being believed.[35] Many states, including Arkansas, partially address this issue on the criminal side of the justice system by enacting rape shield laws.[36]

Arkansas law prohibits the introduction of evidence of specific instances of the victim’s prior sexual conduct when a criminal sexual offense is at issue in the case.[37] This protection is not extended to civil cases in Arkansas for victims seeking monetary or other civil relief. Thus, Arkansas does not honor the “important purpose of rape shield laws” in civil cases, as it offers no means of encouraging reporting “by preventing embarrassment and the prevention of reliance on misconceived notions about sexual misconduct.”[38]

In federal court, evidence to prove either a victim engaged in other sexual behavior, or a victim’s sexual predisposition, is generally not admissible in civil or criminal proceedings.[39] No such protection exists in Arkansas Rules of Evidence. Several states do follow the federal example.[40] Arkansas can empower rape victims to seek civil justice by doing the same and either creating a rule of evidence or statute to establish a civil rape shield law. Doing so will break one of the barriers to reporting rape and assault, and provide a clearer path to civil, as well as criminal, justice for victims.

Conclusion

The policy changes discussed here certainly will not solve the sexual harassment, assault, and rape epidemic. Change in the law, and individual behavior, is often incremental despite the glaring need for radical change. Taking the actions defined here will move Arkansas in the right direction, with the understanding we must do more.

[1] The author owns Noland Law Firm, P.A., where he practices environmental law and litigation. He holds a J.D. from the University of Arkansas, and an LL.M. from George Washington University. Ross is a candidate for Arkansas House of Representatives, District 33.

[2] Langer, Gary, Unwanted sexual advances not just a Hollywood, Weinstein story, poll finds, ABC News, October 17, 2017: http://abcnews.go.com/Politics/unwanted-sexual-advances-hollywood-weinstein-story-poll/story?id=50521721.

[3] Id.

[4] 42 U.S.C. § 2000e-2(a); Meritor Savings Bank v. Vinson, 477 U.S. 57, 64 (1986).

[5] 29 C.F.R. §§ 1604.11(a)(2) and (3).

[6] Ark. Code Ann. § 16-123-101 et seq.; Island v. Buena Vista Resort, 352 Ark. 548 (2003).

[7] Ark. Code Ann. §§ 5-14-124 through 127.

[8] Arkansas’ Largest Employers-2014, Arkansas Economic Development Commission, Oct. 2014: http://www.arkansasedc.com/sites/default/files/content/users/lcogbill/arkansas_largest_employers_2014_october_2014_esd_1st_qtr_14.pdf.

[9] Ura, Alex, et al., At the Texas Capitol, victims of sexual harassment must fend for themselves, Texas Tribune, November 13, 2017: https://www.texastribune.org/2017/11/13/texas-capitol-victims-sexual-harassment-must-fend-themselves/.

[10] Steinmetz, Katy, Its Not Just Congress. Sexual Harassment Plagues California Legislature Too, Tim Magazine, November 27, 2017: http://time.com/5035689/sexual-harassment-california-legislature-misconduct/.

[11] Stevens, Heidi, Open Letter Alleges Rampant Sexual Harassment in Illinois Politics, Chicago Tribune, October 24, 2017, http://www.chicagotribune.com/lifestyles/stevens/ct-life-stevens-tuesday-illinois-politics-sex-harassment-1024-story.html.

[12] Abraham, Yvonne, Women Describe Climate of Harassment at Massachusetts State House, Boston Globe, October 27, 2017: https://www.bostonglobe.com/metro/2017/10/27/the-stories-sexual-harassment-beacon-hill-are-overwhelming/0a4T5VADqH9ffipiXfpwGO/story.html.

[13] Caputo, Marc, et al., Six Women Accuse Florida Senate Budget Chair Latvala of Groping, Sexual Harassment, Politico, November 3, 2017: https://www.politico.com/states/florida/story/2017/11/03/six-women-accuse-florida-senate-budget-chair-of-groping-sexual-harassment-115479.

[14] Sadasivam, Naveena, Committee Approves New Sexual Harassment Policy for Texas House,Texas Observer, December 1, 2017: https://www.texasobserver.org/committee-approves-new-sexual-harassment-policy-texas-house/.

[15] Texas House Policy and Procedures Manual Draft Sexual Harassment Policy 2017: https://www.documentcloud.org/documents/4318554-Draft-House-Sexual-Harassment-Policy-11-30.html.

[16] Colorado General Assembly, Workplace Harassment Policy Statement: https://leg.colorado.gov/sites/default/files/workplace-harassment-policy.pdf.

[17] Cal. Govt. Code § 12950.1.

[18] EEOC Definition of Sexual Harassment: https://www.eeoc.gov/laws/types/sexual_harassment.cfm.

[19] Turnure, Jessi, Arkansas Lawmaker Speaks up About Sexual Harassment at State Capitol, arkansasmatters.com, November 16, 2017: http://www.arkansasmatters.com/news/local-news/arkansas-lawmaker-speaks-up-about-sexual-harassment-at-state-capitol/858845399.

[20] Id.

[21] Id.

[22] 29 C.F.R. §1601.74; Alabama, Mississippi, and Arkansas show no listed certified agency.

[23] 42 U.S.C. § 2000e-5(e)(1).

[24] Id.

[25] Guarding Civil Rights in Arkansas: The Need for a State Civil Rights Agency, Arkansas Advisory Committee to the United States Commission on Civil Rights, January 2015: http://www.usccr.gov/pubs/Arkansas_GuardingCivilRights.pdf.

[26] Inskeep v. State of Arkansas, 2016 Ark. App. 135, 1-2.

[27] Id.

[28] Id.

[29] Id., at 2-3.

[30] Id. at 1.

[31] Ark. Code Ann. § 5-39-204(a)(2).

[32] Arkansas Supreme Court Proceedings as of May 5, 2016, Per Curiam Orders: http://opinions.aoc.arkansas.gov/weblink8/0/doc/354768/Electronic.aspx.

[33] Update: Judge’s Decision Upheld, KAIT, May 12th, 2016: http://www.kait8.com/story/31382207/update-prosecutor-upset-with-cut-sentence-of-half-naked-burglar.

[34] See eg. Rennison, C.M., Rape and Sexual Assault: Reporting to Police and Medical Attention, 1992–2000, US. Department of Justice, Bureau of Justice Statistics, August 2002.

[35] See eg. Sable, Marjorie, et al., Barriers to Reporting Sexual Assault for Women and Men: Perspectives of College Students, Journal of American College Health, 2006.

[36] Rape Shield Laws as of March 2011, National District Attorney’s Association: http://www.ndaa.org/pdf/NCPCA%20Rape%20Shield%202011.pdf.

[37] Ark. Code Ann. § 16-42-101(b).

[38] Hines, Patrick, Bracing the Armor: Extending Rape Shield Protections to Civil Proceedings, 89 Notre Dame L. Rev. 879, 880 (2013): http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1071&context=ndlr.

[39] FRE 412(a).

[40] See eg. Ky. R. Evid. 412; Haw R. Evid. 412(d).

#MeToo: Considerations When Evaluating Viable Claims For Sexual Harassment In The Workplace

This article originally appeared in the Winter 2018 ATLA Docket.

By: Elizabeth LaRue-Grigg

Gregory & LaRue, PLLC

Those two little words together as #MeToo now represent the recent disturbing exposures of sexual harassment in the workplace and beyond. The hashtag represents a movement that allows people to share their experiences without embarrassment and raise awareness of the magnitude of the problem. It has sparked a firestorm of revelations recently against many prominent male media figures, such as the Hollywood producer Harvey Weinstein; the veteran CBS reporter Charlie Rose; the NBC political journalist Mark Halperin; and most recently, the longtime NBC news anchor Matt Lauer. Their individual stories are egregious and resulted in their termination from employment. It remains to be seen if the employers will be held accountable for their own actions or inactions.

Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. In the recent cases involving the prominent media figures identified above, the harassers have stated they believed their encounters to be consensual, and they may have been. The definition of unwelcome is subjective. It is a civil definition, not a criminal definition. When an individual in a position of power begins asking or demanding sexual favors or engaging in illegal sexual harassment against those in more vulnerable position to them in the workplace, the advances can be deemed unwelcome even if they meet the criminal definition of consensual. It is important to determine all the facts surrounding the encounters to determine if the harassment is truly welcome or unwelcome. The victim may say yes or not object to the conduct, but the contact may be unwelcome.

There are many other factors to evaluate when determining whether actionable sexual harassment exists in the workplace. The victim as well as the harasser can be a man or a woman. The victim does not have to be of the opposite sex. The harasser can be a direct or indirect supervisor, a co-worker, a customer or client of the employer, a third party agent or independent contractor, the owner of the company, a board member or other individuals affiliated with the employer. The victim does not have to be the person that is harassed, but could be anyone affected by the offensive conduct.

Illegal sexual harassment does not have to be of a sexual nature. It can just be offensive comments about the person’s sex. However, it must be behavior that is beyond simple teasing, offhand comments or isolated incidents. When it occurs, the employee must report it to the employer and give them a chance to correct it. The employer must investigate it. The employer does not have to fire the harasser, unless the investigation results warrant otherwise. The victim/employee must help in the investigation, if asked. The employer does not have to tell them the results of their investigation even though communication of some version of the results is a good idea. The harasser may just be counseled in various ways. If the behavior complained about it being particularly egregious but the complaint cannot be substantiated, the result may include the victim or harasser being moved to a different department or shift, if possible.

The employer should take steps to make the victim feel safer and not retaliate in any way. The employer should have policies and procedures in place to prevent and report any acts of harassment or discrimination, often called an open door policy. An open door policy means that an employee can communicate complaints or concerns to any manager at any time or to the human resources department (“HR”). Management should be trained on what to do next. The employer should follow its policies and procedures consistently. Employers should routinely train employees on these policies and procedures. Lack of policies and procedures, training and/or an investigation into complaints are important, but are often not determined until the case is well underway.

The timeliness of filing a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) can be an issue because the deadlines are short. In the cases where there has been an adverse employment action such as a termination, demotion, a cut in pay or hours resulting in reduction in take-home pay or a bonus, etc., you have 180 days from the date of that adverse employment action to file a claim at the EEOC or it is barred. In some instances, there is as long as 300 days to file a claim. On the other hand, for federal employees, the claims must be brought within 45 days of the adverse employment action, or last act of illegal conduct, but through an entirely different complaint process. Bottom line is to file an EEOC charge for your client as soon as possible, but after completing your own thorough investigation into the facts as you would before filing a lawsuit. And when you do not take the case, you may want to direct the individual to go directly to the EEOC while they try to find other counsel. In the cases where there is not an adverse employment action is more difficult to determine when the case is ripe for filing a charge with the EEOC. If you are too early, the EEOC will kick your Charge out within a few days rather than the taking the standard six (6) months or more.

When there has not been an adverse employment action, the illegal harassment has to be so frequent or severe that it creates a hostile or offensive work environment. When those facts occur, you will have 180 days from the most recent act to file the EEOC Charge. The Arkansas Civil Rights Act (“ACRA”) has a one (1) year statute of limitations on these claims but it is better to take advantage of the EEOC process first since there are no filing fees. During the EEOC investigation, the respondent must provide a large amount of information to the EEOC when responding to the Charge. That data can be requested after the Right to Sue letter is issued. You have 90 days from the date of the issuance of the Right to Sue letter to file your federal claims in federal court, with only a few exceptions or the claims are barred.

Another consideration is the definition of the workplace. Unwelcome sexual harassment at the workplace does not just mean the brick and mortar location for the business. With the ability to work from your smartphone and at all hours of the day and night, the definition of the workplace can be a fact intensive analysis. It is important to determine all the facts and circumstances surrounding the events to see if some acts that occurred away from the brick and mortar location may need to be included in the claim.

There are often other discrimination or harassment claims at play. The victim may be retaliated against after engaging in a protected activity. That is another actionable claim that needs to be included in the EEOC Charge. As stated above, the victim must complain to HR or their direct supervisor or otherwise follow the company complaint procedure. This is considered engaging in a protected activity. It is not uncommon for the retaliation to start occurring after the initial complaint and then again, after filing the EEOC charge. It may be necessary to amend the EEOC charge (once or several times), which is a simple process and should be done whenever an adverse employment action occurs.

Our firm, Gregory and LaRue, PLLC, primarily practices in this area. We gather as many details as possible when the potential claimant first makes contact. It may take several weeks for us to determine whether or not there is actionable harassment depending on the number of documents and witnesses available. The investigation that goes into filing a charge should be similar to that done for filing the original complaint in federal or state court. It is important to name every entity that could be involved in the EEOC charge and every claim available or it is barred from being raised in the federal lawsuit. If the claimant has completed the EEOC process, make a FOIA request of their file or have them do that. It can provide valuable insight into all sides of the dispute. These cases are often s/he said, s/he said. Your client’s ability to tell their story consistently and believably is crucial. Often your client may need to seek medical attention for the emotional and sometimes physical harm done by the harassment.

These types of claims on average take 18 to 24 months before there is any resolution. Communicating this to your client is key. This is especially important for those individuals who have suffered an adverse employment action. It may be months or years before there is any relief. These cases are only designed to put the individual back into the position they would have been in had they not been harassed. They will not bring significant monetary damages. The law requires them to mitigate their damages and to find a new job making the same or more income and benefits. If your client finds a new job, making more wages with better benefits their compensatory damage claim will be cut off at that point. Damages for these claims include back wages, front pay or reinstatement, emotional damages, attorneys’ fees, expert witness fees, and costs. Punitive damages are available for especially malicious or reckless acts of harassment. Front pay is usually awarded by the judge and does not exceed 2 to 3 years. Most commonly, one year is awarded. There are caps for compensatory and punitive damages.

  • For employers with 15-100 employees, the limit is $50,000.
  • For employers with 101-200 employees, the limit is $100,000.
  • For employers with 201-500 employees, the limit is $200,000.
  • For employers with more than 500 employees, the limit is $300,000.

For employers with less than 15 employees, there is no federal liability for sexual harassment until Title VII. The ACRA requires a minimum of 9 employees before liability attaches. The cap under ACRA mirrors the federal law with the exception of claims against employers of 9 to 15 employees. The limit in that instance is $15,000 in compensatory and punitive damages. For employers that have eight or fewer employees, you will need to look to the common law for relief for your client.

Victims of harassment often do not want to pursue claims. Embarrassing facts and sometimes medical records to prove damages may need to be disclosed in open court. Informing your client about health resources available in the community and through their own health care providers can be a helpful, supportive gesture. If you have any questions, please feel free to contact Gregory & LaRue, PLLC at 501-683-8

Meet a New Member: Zach Morrison

Meet a New Member!

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New members add energy and excitement to the ATLA Family. New members learn to be better trial lawyers and gain invaluable insights through networking with veteran trial attorneys. We always say it’s like being part of the biggest law firm in the state, and it really is. Zach Morrison of the Law Office of Harris & Morrison recently joined ATLA and sat down to tell us a little more about himself. Thanks for being part of the family, Zach!

Name Zach Morrison, Law Office of Harris & Morrison 

Law School Graduation Date: May 2017

City of Residence: Blytheville, Arkansas

Primary area of practice: Personal Injury and Criminal Defense 

What is the last book you read? The Client by John Grisham

What are your favorite hobbies? Tailgating at Arkansas State football games, live music events, spending quality time with friends.

What made you choose to work in the Plaintiff’s bar? Giving a voice to those who normally would not be heard. 

Share an interesting story from law school. During my third and last year of law school, I worked as a student attorney for the Pulaski County Public Defender’s office and was assigned to Little Rock District Court. Within the first month, I had a client who was charged with a misdemeanor possession of a controlled substance charge. I thought the search of his automobile was questionable, so I decided I was going to take up his cause. I spent three weeks of my limited free time researching and briefing the issue. The week leading up to the suppression hearing, I was not able to make contact with my client. I would get his voicemail every time I would try to call him. The night before the set hearing, I Googled his name, hoping to possibly find a landline number for him. Doubtful, I thought, but worth a shot. What did I find when I Googled his name? His obituary. He had been deceased for over a month and had been departed even before I began researching and briefing his suppression issue. Needless to say, the Court said based on the facts and law presented, that it was inclined to grant my motion to suppress had my client not departed us. The court did grant my motion to dismiss, but on different grounds – death of my client. 

Who is your favorite musician or band? I’m an old soul for 27 years old – love Bob Dylan, Fleetwood Mac, Beatles – Any classic rock, blues, and country. 

Why did you join ATLA? I joined ATLA to be a part of an association of like minded attorneys who stand up for the working class and everyday common people against corporations, insurance companies, and the like. 

What keeps you engaged in ATLA? The fact that I know that ATLA is made up of individuals who work hard to protect every citizen, and that a network of resources is there to assist the attorneys who have devoted their practice to that endeavor. 

What is the most important reason to join ATLA? The depth and breadth of the network of resources available to ATLA members is second to none. I cannot imagine a better organization for a young trial lawyer to join. 

 

Veterans Day 2017

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We are thinking of our military veterans today, and feeling extremely grateful for their sacrifice and service. Arkansas is home to around 250,000 veterans who have served our country and helped protect our freedom. If you haven’t reached out to a veteran you know today – give them a call and tell them thank you! You could also attend a Veterans Day event in your area, or visit a VA hospital. There are endless ways to thank a veteran, and if you need more ideas check out this link.

One way to honor a veteran is to ask about his or her service. We recently talked with ATLA member Monte Sharits about his time of service, and he shared with us about his time as a Navy SEAL. Sharits enlisted in the U.S. Navy in 1995, and after a couple years of training, he became a Navy SEAL in 1997. He was stationed at SEAL Team One in Coronado, CA. In 2002, he served in Operation Enduring Freedom in Afghanistan.

In the years that followed, Sharits attended undergraduate school at night while he was a SEAL instructor. He left the Navy in 2007 as an E-6 to begin law school at the
University of Arkansas.

Sharits said, “Growing up, I had always wanted to be in the military in some capacity. I wanted to be a SEAL for a few reasons. First, I enlisted in the middle of a long period of peace, so I figured that if anyone was going to see combat, the SEALs would be among the first. Second, I loved the ocean and surfing, and figured I’d be comfortable in that environment. Last, the SEAL bases were places where I was excited to live (San Diego, Virginia Beach, and Hawaii), again, so I could live on the beach and surf.

It’s still a little embarrassing for me when people thank me for my service.  It’s appreciated, but really, it’s not at all necessary.  I was doing something I wanted to do more than anything else. When I think of Veterans Day now, I remember the people that I served with. Most of them have recently retired and are now spread across the country like we were before our service. It’s nearly impossible to stay in touch with everybody, but I think about them on Veterans Day and I’d bet they’re probably doing the same thing.”

To all of our military veterans, thank you. We are grateful for each and everyone of you, and each of your families.

Meet an ATLA Member: Paul Ford

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Jonesboro attorney Paul Ford gives back to his community in so many ways including through his work with ATLA and also John 3:16 Ministries. He and his wife Annie have been married for 24 years and together have three children and six grandchildren. He’s an extremely talented attorney with a servant’s heart, and has helped countless Arkansans through their most challenging times. Read more about Paul below, and if you’d like to become more involved with ATLA, call 501-376-2852.

Law School Graduation Date: May 1987

City of Residence: Jonesboro, Ar

Primary area of practice: Personal Injury

What is the last book you read? No Time to Say Goodbye

What are your favorite hobbies? Watching Football

What made you choose to work in the Plaintiff’s bar? Following the example set by my father.

Share a funny story from trial. I had an expert witness of cross exam. He was a valuation expert. I had previously taken his deposition. He changed his testimony at trial. When I reminded him of his previous testimony, I said….Would you please look at Judge VanAusdall and tell him whether you just lied in your testimony today, or whether you were lying in your deposition. The witness looked at the Judge and said….I was lying today.

Who is your favorite musician or band? Hard choice. But, probably Tom Petty. Pink Floyd is a close second.

Why have you taken a leadership role within ATLA? I was following the example of my mentor, David Williams. I saw him give back so much, I had to do the same.

Why did you join ATLA? As a small firm or solo practitioner, the value of ATLA is unmatched.  We get the benefit of the experience of so many great lawyers.  It is like being a member of a statewide law firm and so many folks help everyone else be a better lawyer.

Meet an ATLA Member: Lee Curry

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Lee Curry
ATLA is a family of advocates fighting to protect Arkansans’ constitutional rights and safety. A huge benefit of membership is the opportunity to network with trial attorneys from across the state, and to leverage their knowledge and experiences in your own practice. To that end, we’re kicking off a new blog series to help our members across the state get to know each other a little better! We’re starting with Lee Curry of Monticello. He’s taken an active role in the ATLA Membership Committee, and we appreciate his hard work! Read more about Lee below, and if you’d like to become more involved with ATLA, call 501-376-2852.
ATLA Member: Lee D. Curry
Law School Graduation Date: May 2014
City of Residence: Monticello, AR
Primary area of practice: General practice litigation
What is the last book you read? Devil in the Grove
What are your favorite hobbies?

Watching Razorback athletics, reading about current events and history, and coloring on my iPad (I started doing this a few months back and it is the ultimate stress reliever).
What made you choose to work in the Plaintiff’s bar?
The biggest factor that led me to the Plaintiff’s bar was the degree of autonomy that came with it. I get to work the cases I want to work, help the people I want to help, and become personally invested in the lives of my clients. Even though I am an associate, my partners don’t dictate how I do my work – they expect me to disagree with them, to offer up my opinions, and to find novel solutions to the legal issues presented by our client’s cases.

Who is your favorite musician or band?
Widespread Panic
Why have you taken a leadership role within ATLA?
As a young attorney, you have plenty of opportunities to dedicate your time and efforts to countless organizations. I chose ATLA because I see it as the vehicle through which I can best achieve positive change in the world. There’s no other organization I’ve found that stands for the principles I value. Particularly important to me has been watching this group of genuine individuals sacrifice so much of their own time, money and resources to protecting the rights of others, many of whom lack the ability to protect themselves.
Why did you join ATLA, and what keeps you engaged?
On the recommendation of my partners. They told me the first day of work that ATLA was the best resource for any attorney. I’m extremely grateful for that advice.
The one thing that keeps me engaged, day in and day out, is the camaraderie of my our members. Every time I see Joseph Gates, he gives me a big hug. Joe Denton and Justin Zachary will call me out of the blue to get my opinion on an issue in their case. Taylor Chaney and I will routinely call or text to pick each other’s brains over the legislative agenda. I’ve volunteered my time to help out Sarah Jewell and Victoria Leigh on issues in their cases, and they’ve gladly returned the favor. We can all spend months without seeing each other in person, and the moment we get back together, it’s like we never spent any time apart. We are brothers and sisters in arms, waking up every day to fight the good fight. And in a profession like ours, where we are constantly fighting an uphill battle, it’s motivating to know that these people will endure the storm with you, come Hell or high water. It’s folks like these who strengthen my resolve each day, and remind me that this is a cause worth fighting for.
What is the most important reason to join ATLA?
Because ATLA gives a voice to those of us who represent the voiceless. United we stand, and divided we fall.