"Me Too" Evidence

In 2001, I wrote an article titled "Previous Acts of Discrimination: Probative or Prejudicial?" It was published in Vol 25 of the American Journal of Trial Advocacy. I've never told the story of what prompted me to write the article. In light of the Supreme Court's recent case of Sprint/United Management v. Mendelsohn, I feel vindicated and will come clean.

My current law partner, who was my boss at the time, was trying a retaliatory discharge case. I was second chair in the trial. Our primary evidence of retaliation was the testimony of another employee who was fired under the same circumstances. The judge excluded our evidence because the two situations were so similar, he found they would be unduly prejudicial. Effectively, he ruled our evidence was too relevant.

This drove me nuts, so I wrote an article that was published a year later. I argued that "other acts of discrimination" should be admissible under Rule 404(b) if the same decision maker was involved and there was reasonable temporal proximity.

The United States Supreme Court recently handed down a decision in a similar case. In the opinion of the Court, Justice Thomas held that such evidence could be admissible. In fact, the Court went even further than I did in my article. While the Court avoided ultimately deciding the issue, Justice Thomas' majority opinion went so far as to say that "me too" evidence could be admissible under certain circumstances even if DIFFERENT decision makers were involved.

We'll have to wait and see how the law evolves after this decision, but employee rights lawyers and their clients are certainly better off now.

This is the link to David Stout's article in the New York Times following the Court's decision. www.nytimes.com/2008/02/26/washington/26cnd-scotus.html?hp