Stuart Buttrick Comments on Motion Preparation in Employment Cases

With jurors easily lost to the plaintiffs' side in employment cases, the difference between a win and a loss for defense counsel often comes down to motion preparation, Law360 reported in its story, "Top 5 Employment Motions and How to Win Them."

As helpful as it can be to keep certain evidence out of the case, Stuart Buttrick of Baker & Daniels warned that trying to exclude too much evidence can backfire. Even if attorneys manage to keep out a great deal of adverse evidence and win the case, there is a chance that an appeals court could vacate the judgment on the grounds that the evidence should have been included, Buttrick told Law360.

The heightened pleading standards established by the U.S. Supreme Court in the Twombly and Iqbal cases have opened the door for more motions to dismiss by defendants in employment cases, Buttrick said in the story.

Some plaintiff's counsel are not yet up to speed on the new standards, which has allowed defendants to attack suits that make conclusory allegations that are unlikely to meet the new pleading standards, Buttrick told Law360. Under Twombly, a complaint can't simply allege that a termination decision was made with discriminatory intent without presenting supporting evidence, he said.

While there has been some talk about Congress stepping in to overrule the Twombly standards by legislation, "for now, we're making hay," Buttrick said.