When a Lawyer Creates His Own " Evidence, " It Shouldn ' t Help Him Win Millions

Should judges consider evidence that ’s inadmissible at trial when deciding whether to certify a class for class-action litigation? Particularly given the serious consequences of certification—most defendants settle class actions to avoid greater liability, and non-certified cases are often not worth pursuing—due process should r equire that evidence presented at the class-certification stage meet the same standards as that presented at trial.One case out of California illustrates how allowing inadmissible evidence in any part of a legal proceeding not only violates the due-process rights of defendants and absent class members, but contradicts recent Supreme Court rulings and the Federal Rules of Civil Procedure. Maria del Carmen Pena is the lead plaintiff of a group of agricultural employees alleging that they were denied breaks due them under the governing law. Pena tried to gain class certification by presenting a spreadsheet summarizing work hours, but this evidence was inadmissible for trial purposes because it was created by her attorney.Nevertheless, the district court certified the class and the U.S. Court of Appeals for the Ninth Circuit affirmed. Cato has now fileda brief supporting the employer ’s cert. petition, urging the Supreme Court to address just that evidentiary issue.If, as the Supreme Court recently said inWalmart Stores, Inc. v. Dukes(2011), “mere allegations” are insufficient to support certification, then it is also wrong to allow otherwise...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs