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Dewey Publications Inc.
News and Case Alert
Issue #3-9
In this issue...
The Seven Keys to Direct Examination
The Board is Now Posting Nonprecedential Decisions to its Website
Changes Brought About By the ADAAA

The Art of Advocacy
What to Do and How to Do It Before the MSPB and Arbitrators
By: Fowler & Vitaro
Price: $160.00
Sku: 11AOA
Edition: 1st/2011
ISBN: 1-934651-53-2
Availability: IN-STOCK
Format: Book, CD, or eBook

This concise guide is a must-read and reference for everyone involved in the advocacy process before the MSPB or a labor arbitrator. From prehearing to posthearing strategies and everything in between, this new title gives practical advice on navigating the advocacy process-and doing it effectively. (more details)

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Federal Sector Disability Discrimination Law Deskbook
By: Gilbert
Price: $160.00
Sku: 11DDLD
Edition: 3rd/2011
ISBN: 1-934651-54-0
Availability: IN-STOCK
Format: Book, CD, or eBook

This Deskbook is an easy read and an excellent resource for anyone dealing with federal disability discrimination law. Updated and expanded on all disability related topics including recent case law, regulations and governing law.(more details)

Federal Sector Workers' Compensation
By: Laws
Price: $235.00
Sku: 11FSWC
Edition: 4th/2011
ISBN: 1-934651-56-7
Availability: IN-STOCK
Format: Book, CD, or eBook

Authoritative, comprehensive, and practical, this book covers all aspects of workers' compensation issues in the Federal sector. Indispensible to anyone involved in OWCP cases. OWCP regulations, litigation, and processes, as well as FECA guidance, and ECAB case law and regulations are analyzed, explained, and dissected. (more details)

A Guide to Merit Systems Protection Board Law and Practice (2012)
By: Broida
Price: $550.00
Sku: 12MSPB
Edition: 29th/2012
Availability: Spring 2012
Format: Book (+ optional CD)

A Guide to Federal Labor Relations Authority Law and Practice (2012)
By: Broida
Price: $450.00
Sku: 12FLRA
Edition: 25th/2012
Availability: Spring 2012
Format: Book (+ optional CD)

A Guide to Federal Sector Equal Employment Law and Practice (2012)
By: Hadley
Price: $550.00
Sku: 12EEO
Edition: 25th/2012
Availability: Spring 2012
Format: Book (+ optional CD)
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The Seven Keys to Direct Examination
Excerpted from Renn Fowler and Sam Vitaro's New Release:

Dewey's new release, The Art of Advocacy, is a comprehensive handbook on litigation techniques before the MSPB and arbitrators, providing strategies and techniques on Board and arbitration fundamentals, proof requirements, pre- and post-appeal advocacy, discovery and motion practice, hearings and settlement. Dewey is pleased to present its readership with an excerpt from what is bound to be a bestseller.

Chapter 8 of The Art of Advocacy breaks down the elements of "The Winning Direct Examination." The authors provide seven keys to clarity and persuasion. Key 1: Simple, short, single-fact questions. Key 2: Proper use of the closed question. Key 3: Transitional, directive, and sectional questions, is reproduced below.

The cardinal objective of organizing and structuring a persuasive direct is to make it easy to follow. A key way to do that is to guide the listener and the witness through the direct with transitional, directive, and sectional questions. The witness is, of course, the principal evidence provider, but it is the representative's job to narrate the witness's testimony so that it is clear and easy to follow.

It is not infrequent to hear the judge or arbitrator ask "what does this have to do with _____," when testimony on that matter concluded several minutes earlier and the witness is several minutes into a wholly different topic. That is something that you cannot allow to happen. The judge's (or arbitrator's) question means that the direct was confusing and did not work.

Transitional questions serve as a guard against such misunderstandings. They offer a road map to the listener by announcing that the testimony on one point has concluded and the examination is turning to another point. They function much like an outline for an article or chapters to a book. Without these signpost questions directing the listener to turn her attention to the next subject, the witness's testimony is much like a book without chapters, sections, paragraphs, or topic sentences.

The transitional, directive, and sectional question is often a declarative statement. It is usually somewhat leading but is allowed as an exception to the leading rule with the judge (or arbitrator) having wide discretion to allow the examination to proceed so as to develop clearly the witness's testimony. As long as the question does not go beyond focusing the witness on the next subject area, any objection should not be sustained.

The open question is not a good transitional signal. A string of "what happened" or "what happened next" questions is tantamount to an essay without paragraphs. Such questions and answers (unmodified with more narrow and closed questions and unassisted by transitional and directive questions) abdicate to the witness the task of advocacy and to the judge (or arbitrator) the job of sorting out what he hears.

Examples of transitional, directive, and sectional questions include:
  • Q. Mr. Labine, thank you for recounting your conversation with Mr. Branca about the assignment to draft the new sexual harassment policy. I would like to move now to the October 31, 2011 meeting in Commissioner Roe's office, okay?
  • Q. Your honor, I am going to move from the October 31, 2011 meeting, and we would like to take up what, if any, steps the agency took without a current policy statement in place. Okay, Mr. Labine?
  • Q. Your honor, I am going to move from the decision to post the EEOC regulation and move on to Mr. Branca's oral reply to the proposal to remove. Okay, Mr. Labine?
Note that the last question also serves as a summary on what was done when the agency did not have in place its own sexual harassment policy.

Transitional and directive questions are critical to a clear and easy-to-follow direct. Keep in mind that almost everything is clear to the representative who has been living with the case for months, if not years. It is fatal to assume that everything is clear to everyone else.

Key 4: Emphasizing key points. Key 5: Clear, vivid word choice. Key 6: Clear foundations. Key 7: Know how and when to use the leading question.

For more practice tips and strategies, get your copy of The Art of Advocacy now.

The Board is Now Posting Nonprecedential Decisions to its Website
by Natania Davis

Effective October 5, 2011, the Board issued an interim rule amending 5 CFR 1201.117(c) (noting that the Board may issue precedential or nonprecedential orders) "to make clear that the Board may, in its discretion, include discussion of issues raised in an appeal in a nonprecedential Order...", and, in fact, the Board has been doing just that. In the last year, the Board has issued, but until recently not published, hundreds of "nonprecedential" decisions.

The impetus for such nonprecedential decisions, it seems, was to dispense with short orders in some cases and to give "parties greater insight into the Board's reasoning." Title 5 CFR 1201.117(c)(2) now provides:

Nonprecedential Orders. A nonprecedential Order is one that the Board has determined does not add significantly to the body of MSPB case law. The Board may, in its discretion, include in nonprecedential Orders a discussion of the issue(s) to assist the parties in understanding the reason(s) for the Board's disposition in a particular appeal. Nonprecedential Orders are not binding on the Board or its administrative judges in any future appeals except when it is determined they have a preclusive effect on parties...Parties may cite nonprecedential Orders, but such orders have no precedential value; the Board and its administrative judges are not required to follow or distinguish them in any future decisions.

76 Fed. Reg. 60706 (September 30, 2011) (amending 5 CFR 1201.117(c)(2)).

By press release, the Board announced its intention to publish nonprecedential orders issued on or after October 1, 2011, on its website, and "will eventually make nonprecedential orders issued before October 1 available on its website." MSPB Begins Posting Nonprecedential Decisions on its Website, Press Release, October 5, 2011.

This new decisional practice brings the MSPB in line with its reviewing court, the Federal Circuit, but it may arguably be a solution in search of a problem.

Peter Broida's seminal text on Board law, A Guide to Merit Systems Protection Board Law and Practice is currently in revision to report all the nonprecedential decisions issued to date.

Changes Brought About By the ADAAA
Excerpt from Gary Gilbert's Third Edition of

The Deskbook is back and fully updated. Extensive analysis of specific impairments, major life activities, what it means to be a qualified individual with a disability, reasonable accommodations, and the ADAAA, provides readers with an understanding of the intricacies of disability discrimination law in the federal sector. The following excerpt from the newest edition of the Deskbook traces the most important changes brought about by the ADAAA.

There are several far reaching changes brought about by the ADAAA and the Commission's implementing regulations. First, the law mandates that mitigating measures shall not be considered in assessing whether an individual has a disability with a relatively minor exception; "ordinary eyeglasses or contact lenses" may be considered. This was a direct swipe at the Supreme Court's decision in Sutton which, as discussed in some detail later in the text, held otherwise. The ADAAA also makes clear that an impairment that is episodic or in remission is a disability under the ADA if it would substantially limit a major life activity when the impairment was active.

Coverage under the ADAAA will also increase as a result of language in the Act that modifies the definition of "major life activities" by expanding the definition of major life activities to clarify that the definition includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating). In addition, the list of major life activities now explicitly includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions"). The Commission has also changed its regulations to eliminate use of the term "qualified individual with a disability," consistent with the ADAAA's elimination of that term. The Commission replaced the phrase with simply "an individual with a disability."

This means that more employees will be subject to the protections of the ADA and more persons will be entitled to reasonable accommodations in employment. But the Congress also used the opportunity to expand coverage of what is often referred to as the third prong of the definition of a disability. The ADA defines disability with regard to an individual as: (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. After the Supreme Court's decision in Sutton, the third, or "regarded as" prong of the definition was considerably weakened. But the ADAAA went beyond merely restoring the law to its pre-Sutton status and bolstered the protection afforded persons who are subjected to adverse actions because of a medical condition. The law now provides that:

    An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
The exception is that the "regarded as" provision does not apply to impairments that are both transitory and minor; i. e. an impairment with an actual or expected duration of 6 months or less.

To understand the significance of Congressional action in passing the ADAAA, one need only look at the language of the findings and purposes of the new law. Seldom has the Congress so aggressively revised a law to undo the interpretive actions of the Supreme Court. Declaring in the Findings and Purposes of the ADAAA that:
    (1) "in enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act 'provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities' and provide broad coverage"
The ADAAA reversed most of the major interpretive decisions of the ADA by Supreme Court. And Congress made clear that it did not expect a repeat of the judicial tampering with the ADAAA that had followed enactment of the original ADA and emphasized the expectation of judicial hands off with the remainder of the findings that preceded the substantial changes to the law....

Get updated on disability discrimination law with your copy of the Deskbook now.