Mock Deposition Provides Chance for Students to Put Their Law Studies to Practice

From left, Boyd students Michael Lin and
Elizabeth Wo Do and Professor Ann McGinley

It’s not every day that a law student walks into a classroom and asks a classmate, “So when did he grab your butt?”

Unless it’s during Professor Ann McGinley’s Employment Discrimination class at the William S. Boyd School of Law, in which case it’s par for the course.

The class of 34 second- and third-year law students recently took a hands-on approach to learning about Title VII by participating in a two-day mock deposition classroom experience based on a fictional sexual and racial harassment case. Title VII of the Civil Rights Act of 1964 forbids discrimination based on sex, race, national origin and religion.

“I don’t think any of them had ever seen a deposition before,” said Professor McGinley. “So not only were they dealing with this new set of legal issues, but they were trying to figure out how to prove their case and ask questions about it.”

Written by Professor McGinley, the fictional case involved a young African American woman who alleged she was sexually harassed by her supervisor at a bar outside of work. To complicate the issue, she had engaged in a consensual, sexual relationship with the man prior to his promotion to supervisor.

Though such subject matter can be uncomfortable to the lay person, it’s the lawyer’s job to give a voice to the client, explained attorney Kathleen England. England rallied 12 attorneys (including herself) from the Las Vegas law community to act as coaches for the students during the mock depositions.

“These are the day-to-day issues with which we deal,” said England, past president of the Nevada State Bar. “We deal in very sensitive subjects, in aspects of people’s lives that are unpleasant, and most people wish had never happened to them.”

Depositions typically take place in an attorney’s office, but the mock depositions took place in three classrooms at the law school. After reviewing the case and the laws surrounding it, students were broken into groups to take the deposition, defend the deposition, and to act the role of the deponent.

“There are a lot of questions to ask on both sides,” said Professor McGinley. “There were all these light bulbs going off for the students.”

During the first session, for instance, one student who was acting as the plaintiff lawyer was sitting there very quietly.

“And then something happened,” said attorney Cayla Witty, a 2012 Boyd graduate. “He said, ‘Can we take a time out?’ And he asked, ‘Is it OK if I object?’ And I’m like, ‘Absolutely, you have to jump in, you can’t be afraid.’”

Clockwise from left, attorneys Marjorie Hauf (Boyd Class of 2002), Miriam
Rodriguez (Boyd Class of 2003), Carol Davis Zucker, and Christian Gabroy;
Professor Ann McGinley; Attorney Kathy England; and students Michael
Lin and Elizabeth Wo Do

Witty said the hesitation to assert oneself is something a lot of new attorneys go through, and that makes having a practical platform such as a mock deposition invaluable for law students.

“A lot of people go into law school viewing the legal profession with a very skewed understanding of what happens on a day-to-day basis,” said Witty, “so getting a chance to do it in a controlled setting where you can ask questions, where you can make mistakes, where you can get pointers, is a great experience.”

On the second day, after all the students had a chance to play each of the roles in the deposition, the lawyers spoke about the purpose of depositions and put on a mock deposition of their own. This gave the students a chance to observe practicing lawyers approach the deposition process. 

“One part of learning how to practice law is looking around and seeing how other people do it,” said England. “Some people use humor, some talk faster than others. You have to develop your very own style and continue to hone it and hone it and hone it.”

Every lawyer has a different personality, added Witty, and “you can definitely see that in the students as well.”

Student Elizabeth Wo Do described the mock depositions as a tremendous learning opportunity and a chance to unleash everything she’s learned in law school up to now.

“It was a really good experience to practice what we know and also learn from the mistakes that we made,” she said. “In an actual setting things didn’t always go as we expected so we had to make adjustments in that moment.”

Attorney Marjorie Hauf, a 2002 Boyd alumna, said it was a learning experience for the lawyers as well.

“It’s always helpful even when you’re out there practicing to go back and revisit your basics,” she said.

In general, the Employment Discrimination course covers a variety of topics from disparate treatment to disparate impact. Professor McGinley said she often tries to incorporate practical exercises to help emphasize certain doctrinal issues. She felt the topic of harassment best lent itself to the deposition process, which is considered one of the most important discovery tools for an attorney.

“It’s a difficult course in that the students have to learn a significant amount of theory and doctrine,” said McGinley. “But after they’ve learned it they need to learn how to apply it in a more practical situation. I don’t think they really understand it or internalize it until they have an opportunity to put it into practice.”

Student Jose Martin said the mock deposition really helped add some perspective to the class materials.

“There are many skills that are critical to our future jobs, if we get jobs, that one does not learn reading or reciting 10 more cases, or 100 more,” he said, adding that he appreciated being able to read the materials in the context of a deposition versus a law exam. “Nobody pays you to take law school exams.”

Employment Discrimination defense attorney Nick Crosby said he was not only really impressed by the overall structure of the mock exercise but also the way the students handled it.

“I didn’t expect that level of confidence from people who have never taken a deposition or maybe have never seen a deposition,” said Crosby, a 2004 graduate of Boyd. “I can tell we have a high caliber of student and it’s pretty evident that the professors care about the success of those students.”

Las Vegas is a small legal community, added Crosby, and Boyd graduates will eventually become colleagues. Ensuring they are getting a great education is in everyone’s best interest, he said.

There may be a lot of things an attorney can argue with, but as Crosby put it: “You really can’t argue with the benefit of having better attorneys.”

Professor Morrison Places New Article in the American University Law Review

The Boyd School of Law is very pleased to announce that Visiting Assistant Professor Angela D. Morrison has placed her article "Duke-ing Out Pattern or Practice After Wal-Mart: The EEOC as Fist" in the American University Law Review.

Professor Morrison's article examines the role of the U.S. Equal Employment Opportunity Commission ("EEOC") in litigating pattern or practice claims after the Supreme Court's recent decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Although the decision in Wal-Mart significantly limited the ability of private litigants to bring systemic claims of employment discrimination, courts who seek to similarly limit the EEOC's litigation authority misapprehend the role of the EEOC. The article concludes that as an institutional player and by design, the EEOC is best suited to litigate systemic violations of Title VII. And, the EEOC administrative process addresses many of the due process concerns of both employee-victims and employers. Thus, preserving EEOC litigation authority both in terms of for whom the EEOC can seek relief and the type of damages it can recover is necessary to ensure the effective enforcement of Title VII.

 

Professor Morrison's article is expected to go to press in December 2013.  Congratulations, Angela! 

Eighth Annual Colloquium on Scholarship in Labor and Employment Law

The Boyd School of Law is pleased to announce that it will host the Eighth Annual Colloquium on Current Scholarship in Labor and Employment Law on September 27 and 28, 2013, in Las Vegas, Nevada.

 

The Colloquium will begin with a breakfast at the UNLV Tam Alumni Center on Friday morning. Participants will workshop papers all day Friday through Saturday afternoon. Breakfast, lunch, and break services will be provided on site at Boyd School of Law on Friday; breakfast, break services, and a wrap-up dessert reception will be offered on Saturday (lunch on your own). On Friday evening, a special dinner and panel discussion will be held at the Culinary Union (Local 226) banquet hall.

 

The Colloquium will offer an informal setting in which participants can discuss works-in-progress and exchange ideas. The friendly, low-key atmosphere and the opportunity for participants to socialize with colleagues who specialize in labor and employment law make this gathering especially fun and valuable.

 

For complete details and to register for the Colloquium, please click here. Questions regarding the Colloquium may be directed to Ann McGinley, William S. Boyd Professor of Law, Boyd School of Law, UNLV, and Ruben Garcia, Professor of Law, William S. Boyd School of Law, UNLV.

Professor McGinley to Give University Forum Lecture Today

The Boyd School of Law is pleased to announce that Professor Ann McGinley is giving a University Forum Lecture today (Tuesday, March 19, 2013) from 7:30 to 8:30 p.m. at UNLV's Marjorie Barrick Museum/Harry Reid Center. 

Professor McGinley's lecture, which is presented by the College of Liberal Arts and sponsored by the UNLV Women's Council, is titled "The End of Men: Myth or Reality?" Drawing on law, popular culture, and concepts of masculinity, Professor McGinley will challenge Hanna Rosin's assertion in "The End of Men" that women will soon overtake men in blue-collar and white-collar workplaces. Professor McGinley will explore changing relationships between the sexes and how the law has affected gender dynamics at work. She will also examine how the increasing sexualization of Las Vegas casino jobs affects men’s and women’s job prospects and relationships.

The event is free and open to the public. Additional information is available here.

Professor McGinley Publishes Article in the Connecticut Law Review

The Boyd School of Law is very pleased to announce that Professor Ann McGinley published a new law review article in the Connecticut Law Review. The full citation is Ann C. McGinley, Reasonable Men, 45 U. Conn. L. Rev. 1 (2012), and a pdf. copy of the article is available from the Connecticut Law Review here.

As background, after the Supreme Court recognized sexual harassment as a form of sex discrimination under Title VII, lower courts used the reasonable person standard to measure whether the behavior was sufficiently severe or pervasive to constitute a hostile working environment. Cultural and radical feminists objected to the reasonable person measure, and many supported a reasonable woman standard, which the Ninth Circuit adopted. Because of its tendency to essentialize how women would react, many feminists soon abandoned their support for the standard. A number of circuits, however, continue to use the reasonable woman or reasonable victim standards.

Most of the scholarship concerning the proper standard of reasonableness assumes male perpetrators and female victims. There is no legal scholarship that deals with the question of a male victim of a female perpetrator. A recent Ninth Circuit female-on-male harassment case raises important issues concerning the reasonable woman standard.

In her article, Professor McGinley develops multidimensional masculinities, a new legal theory, to reconsider sexual harassment law as it relates to male victims. Through an examination of the recent Ninth Circuit case, Professor McGinley's article demonstrates that applying a reasonable man standard to male victims would establish a preferred standard of masculinity that may harm men, women, and society in general. Most likely, the article proposes, the standard would mimic the concept of “hegemonic masculinity,” the most powerful ideal form of masculinity in society. This ideal form of masculinity would judge too harshly those men who may be most vulnerable to other-sex and same-sex harassment: men who do not live up to gender stereotypes.

Professor McGinley's article proposes a shift to a new universal standard for determining whether workplace behavior is sufficiently severe or pervasive to create a hostile working environment. This standard inquires whether the victim’s response is a reasonable one considering not only the various identity factors of the victim, but also the workplace, and the social and individual context in which the harassing behavior occurs.

NYU Press Publishes McGinley's Masculinities and the Law

The Boyd School of Law is very pleased to announce that Professor Ann McGinley's latest book, Masculinities and the Law: A Multidimensional Approach (with Frank Rudy Cooper) was recently published by NYU Press.

According to masculinities theory, masculinity is not a biological imperative but a social construction. Men engage in a constant struggle with other men to prove their masculinity. Masculinities and the Law develops a multidimensional approach. It sees categories of identity -- including various forms of raced, classed, and sex-oriented masculinities -- as operating simultaneously and creating different effects in different contexts.

By applying multidimensional masculinities theory to law, McGinley and Cooper's cutting-edge collection both expands the field of masculinities and develops new thinking about important issues in feminist and critical race theories. Topics covered include how norms of masculinity influence the behavior of policemen, firefighters, and international soldiers on television and in the real world; employment discrimination against masculine cocktail waitresses and all transgendered employees; the legal treatment of fathers in the U.S. and the ways unauthorized migrant fathers use the dangers of border crossing to boost their masculine esteem; how Title IX fails to curtail the masculinity of sport; the racist assumptions behind the prison rape debate; the surprising roots of homophobia in Jamaican dancehall music; and the contradictions of the legal debate over women veiling in Turkey. Ultimately, Masculinities and the Law argues that multidimensional masculinities theory can change how law is interpreted and applied.

A leading national scholar in the areas of Masculinities Theory and Law, Disability Discrimination Law, Gender and Law, Employment Discrimination Law, and Employment Law, McGinley serves as William S. Boyd Professor of Law at Boyd School of Law.