DEPOSITIONS THAT WIN CASES: THE PLAINTIFFS PERSPECTIVE

AMERICAN BAR ASSOCIATION EMPLOYEE RIGHTS & RESPONSIBILITIES COMMITTEE LITIGATION SKILLS COURSE San Juan, Puerto Rico March 22, 2011

Darlene A. Vorachek Abrahamson Vorachek & Mikva 120 North LaSalle Street Suite 1050 Chicago, Illinois 60602 312/263-2698

updated November 2010 by Heather F. Lindsay, Lindsay & Andrews, P.A., 5218 Willing Street, Milton, Florida 32570 850/623-3200

Few discovery devices provide such surprise, despair, information, and fun as depositions. Obtaining the most from the opportunity to sit down with the key witnesses before trial requires counsel to give each deposition the preparation and advance thought it demands. This paper addresses steps to take so that the depositions can make your case and destroy the defenses of the opposition. I. DEFENDING THE PLAINTIFFS DEPOSITION Most plaintiffs have never had their depositions taken. Therefore, the plaintiff even more than defendants witnesses will require preparation before his or her deposition. Preparation includes more than going over the facts of the case, and if that is all that is covered with the plaintiff, you as his or her counsel will be in for some unfortunate surprises. Below are some of the topics to discuss and explore with your plaintiff before the deposition begins. A. Goals of a Deposition You should discuss with the plaintiff the goals to be achieved from the deposition. Certainly there are goals for the plaintiff to achieve. It will help put the plaintiff at ease if you explain what goals the employer may be seeking from the deposition as well. 1. Evaluation of the plaintiff as a witness. The plaintiffs deposition is often the first opportunity for the employers counsel to meet the plaintiff. The employers counsel will be evaluating the plaintiff. So many cases of discrimination require credibility determinations (the plaintiff says it happened one way and the defendants witness or witnesses deny plaintiffs allegations), it is not surprising that an evaluation of the plaintiff is a very important part of any deposition. Will the jury like the plaintiff? Is the plaintiff credible, sympathetic, likeable? A plaintiff must know that his or her manner, in addition to his or her factual answers, is being evaluated. A plaintiff is often aided if he or she thinks of this evaluation from the other perspective; namely, that the plaintiff can project the credible image along with the credible facts and thereby help his or her claim. Plaintiffs should be advised to appear like they are going to a job interview.

2.

Discovery of the facts. The defendant will want to learn everything about the plaintiff and his/her case. This requires discussions not just about what happened in the past, but also what the employee is doing now. Remind the plaintiff that if there is some bad fact out there, the time to tell you is before the deposition. A prepared plaintiff is always better than one who gambles that a fact will not come out. Closing all loopholes. Employers counsel want to nail down the facts and ensure that the employee cannot change the story or claims at trial. Plaintiff should be advised to tell the truth, and if the employers counsel asks a question encapsulating testimony, (1) make sure it encapsulates the testimony accurately, and (2) if there is other information that plaintiff cannot remember or think of at that time, simply say so. Summary judgment material. The employer will try to obtain testimony that is helpful for summary judgment; e.g., that the plaintiff does not know any facts concerning the comparables, that the plaintiff believes that discrimination is limited to only two reasons (both of which he will disprove), that the plaintiff never heard the decisionmaker make derogatory remarks about the protected class. Plaintiff must be alert to answering the questions and be prepared to provide a complete answer.

3.

4.

B.

Specific Helpful Instructions 1. The employers lawyer is not your friend. The defendants counsel will often adopt a friendly, likeable manner during the deposition, hoping the plaintiff will relax and say more than he/she would if reminded by a hostile manner that the attorney is doing everything possible to defeat his/her claim. Tell the plaintiff to always remember that defendants counsel wants to defeat his/her claim and that he or she will not make a new friend. Listen to the question. Plaintiffs are often so eager to tell their story that they want to talk and assume the question

2.

is something other than what it is. Remind the plaintiff to listen to what he/she is being asked and give an answer to the question posed. 3. Answer the question. This goes hand in hand with the instruction above, but must be given attention also because of the increasing efforts to bar information supplied by the plaintiff after the deposition. Courts are barring plaintiffs from contradicting earlier testimony given in a deposition by a later affidavit. See, e.g., Frevert v. Ford Motor Co., 614 F.3d 466, 474 (8th Cir. 2010) (disregarding affidavit that sought to incorporate a fact crucial to the whistleblower claim but which was omitted from the pleadings, interrogatory responses, and contrary to deposition testimony); Dugan v. Smerwick Sewerage Co., 142 F.3d 398 (7th Cir. 1998); Aberman v. J. Abouchar & Sons, Inc., 160 F.3d 1148 (7th Cir. 1998); but see Marsh v. Hog Slat, Inc., 79 F. Supp.2d 1068, 1072-1080) (N.D. Iowa 2000) (detailed analysis of the circumstances in which an affidavit may defeat a summary judgment motion). Thus, if there is a fact which was not supplied during opposing counsels examination and, yet, was called for, make sure you, as the plaintiffs lawyer, bring it out during the deposition. Tell the truth. The plaintiff must understand the importance of telling the truth. There is nothing so critical in a discrimination case as credibility not just the plaintiffs, of course, but the plaintiff is one of the key witnesses. Persuasive facts are truthful facts, even if admitting mistakes. Plaintiff cannot afford to be found to be less than truthful on any subject. Take care with questions making and completing lists. Opposing counsel will often ask questions like, You allege that Mr. Williams harassed you on only three occasions -- once in March, when he brushed your breast; once in May, when he asked you out for dinner; and once in June, when he said your work was poor is that correct? If these accounts were identified, but there are

4.

5.

more, a plaintiff must be alert to the summary and exclusionary nature of the question. Of course, you will help the plaintiff, but he/she should be advised to listen for these efforts by opposing counsel also. 6. Listen to and understand objections. I tell my clients that if I start talking, it is time for them to listen. I suggest to my clients that after hearing the question from opposing counsel, they take a moment to consider silently whether they understood the question by concentrating on the words that were used and what facts, if any, are known that are responsive. This allows me time to object. In some jurisdictions, you may be limited to saying object to the form. If you can use more of a description, such as asked and answered, or calls for speculation, your client can be educated by the objection if you have explained to your client what the typical objections are and the reasons for making them. Occasionally I have had to resort to speaking objections to protect my witness from the heavy-handed tactics of the defendants counsel. The best means to protect a client from intimidating tactics is to describe tone of voice and body language for the record as part of your objection, and then take a break so that your client can avoid becoming flustered and making mistakes. No jokes/no sarcasm. Remind the witness that the transcript of a deposition does not include inflection, body movement, or tone. At all times remember, do not use sarcasm; it comes across as a statement of fact. Do not joke; this is not the time for it. If you have a client who is experiencing a great deal of stress and perhaps paranoia, you must remain vigilant to opportunities to take breaks to assist the plaintiff in coping with what will likely be a seven-hour day. Dont ask questions of opposing counsel. Warn your client that he or she does not have the opportunity to ask questions of opposing counsel. If your client does not understand the question, the plaintiff should say so.

7.

8.

Additionally, your client may want to ask how opposing counsel defines a word to better understand the question. This technique will typically result in defense counsel stating, well, how do you define that word? Your client may also try to shift the focus away from him or her by asking a question. If your client is feeling the need to assert control over the process or is otherwise irritated with opposing counsel or the style or content of the questions being posed, instruct your client to answer the pending question and take a break. Additionally, warn your client that if others are in the deposition, such as a spouse or co-plaintiff, the deponent should not expect to have the opportunity to verify a date or other fact during the deposition by referring to someone else in the room for information in response to a question. C. Preparation Materials For the Plaintiffs Deposition 1. Counsel must remember that what is shown to the witness may be requested by the defendants counsel. EEOC v. Johnson & Higgins, No. 93 Civ. 5481, 78 FEP 1127, 1998 U.S. Dist. LEXIS 17612 (S.D. N.Y. Nov. 6, 1998). The plaintiff should NOT review any work product you wish to maintain as confidential. If the plaintiff reviews letters or other communications that are attorney-client privileged, the facts of what was reviewed are discoverable, but instruct your client not to answer any question that seeks information about the communications between you and your client. Schanfield v. Sojitz Corp. of America, 258 F.R.D. 211 (S.D.N.Y. 2009) (voluntary disclosure waives attorney-client privilege). If you allow questioning to continue, the privilege could be deemed waived; on the other hand, instructions not to answer can be construed as overly broad. See, e.g., New Jersey v. Sprint Corp., 258 F.R.D. 421 (D. Kan. 2009). Materials that should be reviewed by the plaintiff. a. The complaint:

2.

Is it accurate? N.B., encourage your client to remember that the complaint is merely a lawyers attempt to describe the facts. The client should not feel shy about saying, my lawyer made a mistake, and correcting errors. Can plaintiff give facts to support the summary legal allegations? Is plaintiff familiar with it? b. Plaintiffs requests: answers to interrogatories/document

Are they honest and accurate? Are they complete? Have any significant changes occurred since they were provided? c. Files obtained in discovery from any source concerning plaintiff (make sure you have asked opposing counsel to produce all records received pursuant to subpoena and that those records are in your possession before plaintiffs deposition): Has plaintiff seen them? How does plaintiff explain them? How do they support plaintiffs version of events? Do the documents reveal new witnesses or new sources for documents?

Where applicable, how will plaintiff explain the fact that they do not support the plaintiffs version of events? d. Other key documents: There may be other documents that do not name plaintiff or were not seen or reviewed by plaintiff. Has plaintiff seen them? Explain the significance of these documents. D. Preparation of Topics Before the Deposition 1. In addition to general instructions and a review of documents, the plaintiff will be comforted by discussing the types of topics that will be covered in the deposition. You need not review every fact under every topic that will be covered. But you must cover the important topics, and the potentially troubling areas should be discussed and reviewed. At least the following topics will be covered. How much detail is required in your review with the plaintiff depends on facts. a. b. Education, prior and current employment Post-termination income/efforts to find comparable employment Employment practices of employer Relations with supervisors/managers (throughout employment) Employment history (discuss accolades, awards, raises, any problems with performance) Events leading to adverse action

2.

c. d.

e.

f.

g. h.

Meeting(s) regarding adverse action Reason given decision-makers for adverse action, identify

i.

Companys treatment of others similarly situated (for any performance issues and each adverse action) Witnesses

j. 3.

Prepare for some of the following general questions as well: a. What makes you think your termination (denial of promotion/raise, etc.) is because of your age/sex/race/disability? Some employers counsel do not ask this question in deposition. They focus on attacking the conclusion of discrimination by attacking plaintiffs facts. But if this kind of question is asked and the plaintiff has no answer, fumbles an answer, or gives a poor answer, plaintiffs chances for success are diminished. It is an easy question to prepare for, so take the time to do it. Plaintiffs, in their efforts to be truthful and to get the deposition over with, may be tempted to say, I dont know, or I dont have any evidence. It is critical for the plaintiff to be made to understand that as opposed to the general instruction to answer only the question that is asked without volunteering information, for purposes of this inquiry, the plaintiff must describe the circumstances that led her or him to seek the advice of counsel or file a charge of discrimination. b. You have no knowledge of claims of discrimination by others, do you? To the extent other claims

were identified by the company in written discovery responses, these source materials should be provided to the plaintiff. If plaintiffs counsel simply tells plaintiff, the answer during the deposition to how the plaintiff knows of other claims of discrimination may be my counsel told me a result with more than one obvious problem. c. The decision-maker, Mr. Williams, believes he terminated you because your report was late? The employer will try to get plaintiff to admit that the employer believed the reasons for the termination were correct, even if the plaintiff alleges that the belief was incorrect. Prepare the plaintiff to respond that the decision-maker with the discriminatory animus did not believe that the legitimate business reason put forth by the employer was the cause of termination. Moreover, you should object if a question assumes a fact not in evidence. Ideally, your written discovery requests seek the asserted legitimate, non-discriminatory reasons and the identity of the decision-maker(s) and each person with input in the decision. If you have this information, you can discuss with your client what facts and circumstances exist that will be evidence that the legitimate, non-discriminatory reason is pretextual. You dont know of any discrimination suffered by Miss Jones, do you? Sometimes the employer will identify another in the protected class (usually someone with whom the plaintiff was not friends) and try to get the plaintiff to admit that he/she is not aware of any discrimination suffered by that other individual. The plaintiffs response to this question should not rule out the possibility of discrimination. Simply state, I did not discuss whether Miss Jones was a victim of discrimination or not. Of course, if the plaintiff observed any racial animus or questionable decisions, these should be identified.

d.

E.

Practice Some Cross-Examination Even if you have a plaintiff that understands the facts and is a reasonably confident individual, it usually pays to practice some cross-examination. The calmest plaintiff can lose the ability to think clearly if the first time they are cross-examined is by opposing counsel. While some opposing counsel adopt a friendly tone in deposition, some will assume a hostile attitude toward the plaintiff. Plaintiffs can and should be prepared for this technique as well.

F.

Spend the Time to Prepare The plaintiff is the most important witness for the plaintiffs claims. Take the time to prepare the witness before the deposition begins.

II.

DEPOSING THE DEFENDANTS WITNESSES Here is your opportunity to bring into focus the presentation of the claims and defenses. You will meet the witnesses, spend time with them, ask what they know, and uncover their strengths and weaknesses. Preparation for taking depositions in employment cases is as important as the depositions themselves. Although there is a great deal more that can be said of depositions, here are the highlights. A. Identify the Purposes/Goals Every effective deposition has at least one. Some of these goals are the same for the depositions of the companys witnesses. You will want to: 1. 2. 3. Evaluate the witness under direct examination. Test the witnesss ability to handle cross-examination. Find out what makes the witness angry or impatient or confused.

4. 5. 6. B.

Gather impeaching testimony. Learn the theory of the defendants case. Force an early settlement.

Conduct a Pre-Deposition Investigation Prior to conducting a deposition, you will want to educate yourself as thoroughly as possible. At least the following items should be addressed: 1. Interview potential witnesses after identifying the topics you want to discuss with them. Speak with the plaintiff and with prior and current co-workers (to the extent ethically appropriate in your jurisdiction) after outlining the topics to cover. Identify and review all company documents pertinent to the claims raised by the plaintiff. Analyze plaintiffs personnel file and other records concerning the plaintiff. Identify those documents that will assist you in establishing the facts you need to establish in a deposition. For example, during depositions of the companys witnesses, you will want to obtain the admission that the favorable facts in the performance file are true. Review any prior declarations or descriptions of the relevant events prepared by the company. If an investigation occurred at the company, review the statements prepared or reports made. If a written submission was provided to the investigating agency, you want to obtain and review it. Identify the portions of these documents that you want to use to obtain helpful admissions.

2.

3.

4.

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Identify facts and events you want each company witness to admit or deny knowledge of.

C.

Identify Who to Depose 1. The management person(s) who made the adverse decision: a. You need to nail down the reason for the decision, the facts underlying the decision, and how those facts were obtained. Dont forget to get admissions of good facts as well, lack of knowledge of company policies, knowledge of good performance by the plaintiff, complaints by plaintiff. Be prepared to substantiate notice of deposition for deposition of upper management. See, e.g., In re Bridgestone/Firestone Inc., Tires Products Liability Litigation, 205 F.R.D 535 (S.D.Ind. 2002) (deposition of high-ranking executive permitted); Wal-Mart Stores, Inc. v. Street, 754 S.W.2d 153 (Tex. 1988) (Sam Walton deposed in slip-and-fall case); Travelers Rental Co. v. Ford Motor Co., 116 F.R.D. 140 (D. Mass. 1987) (plaintiffs allowed depositions of four high-ranking Ford officers in antitrust case after five middle managers deposed); Mulvey v. Chrysler Corp., 106 F.R.D. 364 (D.R.I. 1985) (Lee Iacocca, Chryslers Chairman, deposition denied; interrogatories to be asked first); CBS, Inc. v. Ahern, 102 F.R.D. 820 (S.D.N.Y. 1984) (deposition of president allowed because he had personal knowledge of issues); Less v. Taber Instrument Corp., 53 F.R.D. 645 (W.D.N.Y. 1971) (plaintiff is entitled to test the chief executives lack of knowledge); Overseas Exch. Corp. v. Inward Motors, Inc., 20 F.R.D. 228 (S.D. N.Y. 1956) (same);

b.

c.

2.

The individuals who participated in the adverse decision: a. Often individuals who participated in the decision or wrote a performance evaluation will undercut the decision-makers view that the conduct was a valid basis for termination or will contradict the decisionmakers testimony. These individuals may divulge additional information given to the decision-maker that are not included in documents. The conduct of these individuals may demonstrate that the decision-makers adverse decision was infected by their bias. They were biased against women, blacks, etc. and that bias affected their evaluation of the plaintiff. Stalter v. Wal-Mart th Stores, 195 F.3d 285, 288 (7 Cir. 1999).

b.

c.

3.

A Human Resources representative: a. If you want the importance of company policy established, ask the Human Resources professional. This witness will tell you in an unemotional way what policy should have been followed.

b.

4. 5.

Supervisors who evaluated the plaintiff favorably. Dont forget 30(b)(6) depositions: a. b. c. d. Company policies Compensation and benefits An investigation in the case The reduction in force program

e. f. g. 6.

Training and training records Performance appraisals Financial circumstances of the company

Others to consider: a. b. c. d. e. The successor/replacement employee The comparative employees Secretaries to decision-makers Prior employees Other individuals involved in the poor performance episodes Person who verified interrogatory answers

f. D.

Prepare a Deposition Outline for Each Witness A detailed outline is essential for an effective deposition. 1. In an employment law deposition, a deposition outline starts by including at least the following topics to be covered: a. b. Introductory remarks Education/prior employment history (there are often real gems in the background my favorite was the credit manager, selected to replace the plaintiff at the defendant company because of his superior credit skills, who admitted that he had to leave a prior employer whose credit he managed because it went bankrupt).

c.

Current employment: For the replacement, request a description of job duties; these may not match what the interrogatory answers or decision-makers said. Obtain the compensation and prospects for advancement from peers and replacements. These will be needed for damages calculations. For the coworkers/supervisors, ask them to describe their job duties. You will find who is doing plaintiffs job after termination. For example, if the company said the job duties were eliminated, yet, the 27-year-old administrative assistant states she assumed the task, this may help an age discrimination case. Ask employees to describe the current and former work environment. They may not support managements assertion that there was chaos while your client was employed, or they may establish that there was chaos before and after plaintiff was employed, suggesting that it wasnt the plaintiff who caused the disruption. Employment policies/practices of employer, covering those at issue, disciplinary policies, hiring policies, termination policies Relations with plaintiff Employment history, prior disciplinary counseling and performance evaluations action,

d.

e. f.

g.

Events leading to termination or other alleged wrongful conduct Any meeting at which the plaintiff was informed of adverse action; e.g., termination meeting, disciplinary meeting, etc. Reasons for employers actions (termination, denial of promotion/raise, etc.)

h.

i.

j.

Company treatment of other similarly situated individuals Witnesses Post-termination income (you will need this for the replacement as a possible basis for plaintiffs damages calculations; lavish post-termination expenditures may also undercut the companys assertion that plaintiffs termination was required because of the need to cut costs).

k. l.

2.

Use of documents a. The outline should note the documents that will be used in each topic area. Documents can be used to obtain admissions that are required. Witnesses often agree with statements that are set forth in writing. They usually agree with documents they authored, saw and approved. Sometimes they agree with documents they saw and did not object to at the time they first saw the document. Sometimes preliminary questions leading to the admission are required, and these should be noted for the admission being sought in the deposition. Take care in phrasing the statement you want preserved. Incorporate the substance into your questions. Generally, you want the substantive statement included in the question posed. For example, when you seek agreement from the witness with paragraph 3 of Exhibit 21, do not ask, Do you agree with Paragraph 3, Exhibit 21? Such a question may suffice for summary judgment purposes when a judge reads a substantive fact in that paragraph, but you make it harder for the judge. You make impeachment at trial clumsy at best, and impossible at worst. At the end of the inquiry, you

b.

c.

want a question that states the substantive fact at issue, not so you agree with what is set forth in Paragraph 3 of Exhibit No. 21, but You agree that you requested the cash flow report be done by April 21. Beware using questions like, Anything else? For example, after you cover the decision-makers three reasons for termination, you want to limit the reasons for termination to those set out by the decision-maker in his termination memo. Do not ask, Anything else? Take the time to summarize. Your relied on only three reasons for termination of the plaintiff, as stated in your memo her failure to complete the cash flow report in March, her tardiness on June 3, and her early departure on June 7. Is that correct? d. To the extent you receive documents at the start of the deposition, on the first break, incorporate them into your inquiry and outline. Remember not all documents need to be shown to the witness to be used. Sometimes, you use the wording in a document and ask if the witness agrees. You may obtain a contradiction between the testimony and the document this way. If you show the witness the document, you will alert him or her to the potential contradiction and, instead, you will not receive a contradiction or you will receive an explanation for any contradiction.

e.

3.

Review any notes you made. Incorporate these areas of inquiry into your outline. When doing written discovery requests, I am sure you noted certain areas of inquiry to address in depositions. In addition, prior depositions suggest areas to be covered by subsequent depositions. Incorporate these notes as you prepare the outline.

4.

Ask for the plaintiffs input. Ask the plaintiff to write a narrative of the topics you should cover with the witness. While you will not use all the plaintiffs suggestions, very often plaintiffs suggested topics or facts are very helpful. Check for completeness of the outline. a. Review the documents, making sure they are included in each part of the outline where you want to use them. Make sure the elements of all the causes of action are covered by the outline. Think about what your theory and strategy are for each issue in the case.

5.

b.

c.

III.

CONDUCTING THE EFFECTIVE DEPOSITION A. Introductory Instructions 1. 2. Introductions are made. Ask the witness to tell you if he or she does not understand your question. Tell the witness that if he or she does not ask you to rephrase the question, then you assume the witness understood it, and ask the witness to agree that is fair. Ask the witness if he or she has had a good nights sleep. Ask the witness if he or she is taking any medication that would interfere with his or her memory or ability to testify accurately.

3. 4.

B.

Attitude Toward Witnesses 1. A friendly, non-threatening approach is usually more fruitful than an antagonistic approach. All witnesses are

people, and people prefer, and will usually be more forthcoming, with a friendly manner. 2. Sometimes a tough professional approach will enhance the strength and sincerity of your effort on behalf of the plaintiff. The company witness must know that you have a good case. Tell the witness he/she can take a break when needed, but not when a question is pending.

3.

C.

General Considerations 1. Ask focused questions. While you will want to obtain some general information and will ask general questions, some questions should be direct and pointed to get clear facts on the record. Approach a desired admission from more than one angle. If the company policy is important, you can address it by discussing company policy generally, discussing company policy applied to others, company policy applied to the witness, or company policy applied to the plaintiff. If you get the admission, you need to stop. Develop concise summaries of broad topics so you have a concise record of important statements. Do not assume all relevant documents were produced. Ask the witness if notes were taken; ask for the witnesss business card; ask the witness to identify relevant documents.

2.

3. 4.

5.

D.

Specific Topics to Cover 1. Relationship with the plaintiff. a. Are you friends? Rarely is the supervisor a friend.

b.

If the answer is yes, probe what friend means. Have you been to their home? Have they been to yours? Give presents? Outings together other than work?

2.

Why the plaintiff suffered the adverse decision. a. Ask each witness involved in the decision what was the basis for the decision. Ask what facts support each reason for termination. (You will be surprised that often there are no specific facts supporting the reason(s) for the adverse action.) Ask how they learned the facts or what they did to learn the facts on which they rely. (If they rely on someone else, you should depose the source of the fact too.)

b.

c.

3.

Employees knowledge, or lack thereof, of company policies. a. If you want to establish a company policy, have the employee identify the policy (usually the Human Resources witness is the best one to ask). Find out if the decision-makers knew the company policy or policies. What training did they receive? The absence of any other employment policy. Admission that employees should be given prior warning on the subject on which termination is based. Admission that no prior warnings were given to the plaintiff.

b.

c. d.

e.

f.

Admission that it is only fair to tell employees what they have done. Admission that a fair employer tells employees what they are doing wrong so that they can improve their performance.

g.

4.

The witnesss understanding that each reason given for termination was not a sufficient ground for termination. This is often obtained from the witness when reviewing lists of reasons for termination set out in disciplinary policies, rather than when asking about the plaintiff. The employers understanding that each reason given for termination has not been a ground for termination in the past. If the basis for termination is not reflected on performance reviews, admission that reason for termination was not in performance reviews. Obtain admissions that plaintiff performed well. Admit positive statements in performance evaluations, admit company awards given, admit compliments given to plaintiff. Obtain admissions of objective facts that demonstrate plaintiff was a good performer. Admit that sales numbers were strong. Admit that sales were stronger than individuals retained. Admit that department came in under budget under plaintiff, other departments did not. Obtain admission that other retained employees also had same performance problems as the plaintiff. Obtain admissions regarding the workforce. Admissions that there are no other employees of the same race, sex, age, or other status that fill positions in upper management, supervisory, professional, or in department. Admission that diversity of workforce has not improved or

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6.

7.

8.

9.

10.

has worsened. These types of admissions are particularly helpful if contrasted with the time period in which the company is asserting its diversity efforts occurred. For example, So from 1994 to 1996, when the Diversity Task Force was at work, the management in the finance department remained all male, correct? 11. Compare qualifications of plaintiff and person selected, retained or replacing plaintiff. Obtain admission that person selected has less objective qualifications, less experience in industry, less experience at employer, less experience in management, less experience in sales, fewer academic credentials, fewer professional credentials, etc. Admission that qualities of plaintiff (that replacement did not have) were important for successful performance of the job. Admission that other claims of discrimination were raised because of race, sex, age, etc. Admission that supervisor or decision-maker has no involvement in diversity efforts of company or has no knowledge of diversity initiatives of company. For harassment claims: a. Ask about the witnesses knowledge of company policies against harassment and of the policies to be followed when employees experience it. Ask what the company policy requires. Where the policy was not followed, have the Human Resources professional outline the importance and reason for the company policies on harassment. Have supervisors admit complaint(s) were made by plaintiff or others.

12.

13.

14.

15.

b.

c.

d.

Have each supervisor detail what, if anything, they did and make sure you have them identify everything they did. Admission that they did not do anything; that they did not inform employee of company efforts, if any; that they do not know what the company did; admission of time of complaint and time each action by company taken. If delay in responding is an issue, make sure your questions state the time between complaint and the companys response; e.g., Plaintiff made her complaint to you on March 17, 2008. You interviewed her about her complaint three months later, on June 16, 2008?

e.

f.

16.

For disability claims: a. Have witness admit he was aware of health condition. Have witness admit that he was aware of symptoms. The importance and frequency of the tasks that the employer alleges are essential. Obtain the number of times a specific task, that the employer says is essential, was performed in a week, month, year. (This is a good question to ask the replacement.) The employees ability to perform various aspects of the job at issue with accommodation. The employers failure to grant an accommodation. Admit the cost of the accommodation.

b. c.

d.

e. f.

E.

Dealing With Obstructionist Opposing Counsel 1. Counseling witness between question and answer. If the attorney and client discuss an answer to a question, when back on the record, withdraw the question and return to it later in another context. Consultation after receiving a good answer. Leave the topic. If the witness later states that he wants to add to a prior answer, ask if any prior answers were false, or if he wishes to change his testimony after talking with his attorney. Anticipated obstructionist tactics. Videotaping depositions limits the antics of many opposing counsel. Repeated disruptive conduct by opposing counsel. Seek court intervention. Many courts permit adjudication by the judge or magistrate by telephone. Sometimes, if anticipated, a special master can be appointed. Place tone and actions of opposing counsel on the record.

2.

3.

4.

F.

Final General Deposition Tip Record your impressions about each deposition. Take 20 minutes after the deposition and write down the demeanor of the witness, the topics that he handled well or poorly, what made him nervous, angry, or tearful. Write down how a jury will view the witness: nervous, pompous, likeable, arrogant, evasive. If you are taking a lot of depositions, in a lot of cases, these impressions are helpful as you prepare for trial, but you must do them when the impression is fresh.