preparing plaintiff for deposition 2

8/3/2019 Preparing Plaintiff for Deposition 2

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DEPOSITIONS THAT WIN CASES:THE PLAINTIFFS PERSPECTIVE

AMERICAN BAR ASSOCIATIONEMPLOYEE RIGHTS & RESPONSIBILITIES COMMITTEE

LITIGATION SKILLS COURSE

San Juan, Puerto RicoMarch 22, 2011

Darlene A. VorachekAbrahamson Vorachek & Mikva

120 North LaSalle StreetSuite 1050

Chicago, Illinois 60602

312/263-2698

updated November 2010 byHeather F. Lindsay,

Lindsay & Andrews, P.A.,

5218 Willing Street,Milton, Florida 32570

850/623-3200


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Few discovery devices provide such surprise, despair, information,and fun as depositions. Obtaining the most from the opportunity to sitdown with the key witnesses before trial requires counsel to give eachdeposition the preparation and advance thought it demands. This paperaddresses steps to take so that the depositions can make your case anddestroy 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 requirepreparation before his or her deposition. Preparation includes morethan going over the facts of the case, and if that is all that is coveredwith the plaintiff, you as his or her counsel will be in for some

unfortunate surprises. Below are some of the topics to discuss andexplore with your plaintiff before the deposition begins.

A. Goals of a Deposition

You should discuss with the plaintiff the goals to be achievedfrom the deposition. Certainly there are goals for the plaintiff toachieve. It will help put the plaintiff at ease if you explain whatgoals the employer may be seeking from the deposition as well.

1. Evaluation of the plaintiff as a witness. The plaintiffsdeposition is often the first opportunity for the employerscounsel to meet the plaintiff. The employers counsel willbe evaluating the plaintiff. So many cases ofdiscrimination require credibility determinations (theplaintiff says it happened one way and the defendantswitness or witnesses deny plaintiffs allegations), it is notsurprising that an evaluation of the plaintiff is a veryimportant 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 tohis or her factual answers, is being evaluated. A plaintiffis often aided if he or she thinks of this evaluation fromthe other perspective; namely, that the plaintiff can projectthe credible image along with the credible facts andthereby help his or her claim. Plaintiffs should beadvised to appear like they are going to a job interview.


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2. Discovery of the facts. The defendant will want to learneverything about the plaintiff and his/her case. Thisrequires discussions not just about what happened in thepast, but also what the employee is doing now. Remindthe plaintiff that if there is some bad fact out there, thetime to tell you is before the deposition. A preparedplaintiff is always better than one who gambles that a factwill not come out.

3. Closing all loopholes. Employers counsel want to naildown the facts and ensure that the employee cannotchange the story or claims at trial. Plaintiff should beadvised to tell the truth, and if the employers counselasks a question encapsulating testimony, (1) make sure it

encapsulates the testimony accurately, and (2) if there isother information that plaintiff cannot remember or think ofat that time, simply say so.

4. Summary judgment material. The employer will try toobtain testimony that is helpful for summary judgment;e.g., that the plaintiff does not know any facts concerningthe comparables, that the plaintiff believes thatdiscrimination is limited to only two reasons (both of whichhe will disprove), that the plaintiff never heard thedecisionmaker make derogatory remarks about theprotected class. Plaintiff must be alert to answering thequestions and be prepared to provide a complete answer.

B. Specific Helpful Instructions

1. The employers lawyer is not your friend. Thedefendants counsel will often adopt a friendly, likeablemanner during the deposition, hoping the plaintiff will relax

and say more than he/she would if reminded by a hostilemanner that the attorney is doing everything possible todefeat his/her claim. Tell the plaintiff to alwaysremember that defendants counsel wants to defeathis/her claim and that he or she will not make a newfriend.

2. Listen to the question. Plaintiffs are often so eager to telltheir story that they want to talk and assume the question


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is something other than what it is. Remind the plaintiff tolisten to what he/she is being asked and give an answerto the question posed.

3. Answer the question. This goes hand in hand with theinstruction above, but must be given attention alsobecause of the increasing efforts to bar informationsupplied by the plaintiff after the deposition. Courts arebarring plaintiffs from contradicting earlier testimony givenin a deposition by a later affidavit. See, e.g., Frevert v.Ford Motor Co., 614 F.3d 466, 474 (8 th Cir. 2010)(disregarding affidavit that sought to incorporate a factcrucial to the whistleblower claim but which was omittedfrom the pleadings, interrogatory responses, and contrary

to deposition testimony); Dugan v. Smerwick SewerageCo., 142 F.3d 398 (7th Cir. 1998); Aberman v. J. Abouchar& Sons, Inc., 160 F.3d 1148 (7th Cir. 1998); but see Marshv. Hog Slat, Inc., 79 F. Supp.2d 1068, 1072-1080) (N.D.Iowa 2000) (detailed analysis of the circumstances inwhich an affidavit may defeat a summary judgmentmotion). Thus, if there is a fact which was not suppliedduring opposing counsels examination and, yet, wascalled for, make sure you, as the plaintiffs lawyer, bring itout during the deposition.

4. Tell the truth. The plaintiff must understand theimportance of telling the truth. There is nothing so criticalin a discrimination case as credibility not just theplaintiffs, of course, but the plaintiff is one of the keywitnesses. Persuasive facts are truthful facts, even ifadmitting mistakes. Plaintiff cannot afford to be found tobe less than truthful on any subject.

5. Take care with questions making and completing lists.Opposing counsel will often ask questions like, Youallege that Mr. Williams harassed you on only threeoccasions -- once in March, when he brushed your breast;once in May, when he asked you out for dinner; and oncein June, when he said your work was poor is thatcorrect? If these accounts were identified, but there are


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more, a plaintiff must be alert to the summary andexclusionary nature of the question. Of course, you willhelp the plaintiff, but he/she should be advised to listen forthese efforts by opposing counsel also.

6. Listen to and understand objections. I tell my clients thatif I start talking, it is time for them to listen. I suggest tomy clients that after hearing the question from opposingcounsel, they take a moment to consider silently whetherthey understood the question by concentrating on thewords that were used and what facts, if any, are knownthat are responsive. This allows me time to object. Insome jurisdictions, you may be limited to saying object tothe form. If you can use more of a description, such as

asked and answered, or calls for speculation, yourclient can be educated by the objection if you haveexplained to your client what the typical objections areand the reasons for making them. Occasionally I havehad to resort to speaking objections to protect my witnessfrom the heavy-handed tactics of the defendants counsel.The best means to protect a client from intimidatingtactics is to describe tone of voice and body language forthe record as part of your objection, and then take a breakso that your client can avoid becoming flustered andmaking mistakes.

7. No jokes/no sarcasm. Remind the witness that thetranscript of a deposition does not include inflection, bodymovement, or tone. At all times remember, do not usesarcasm; it comes across as a statement of fact. Do not

joke; this is not the time for it. If you have a client who isexperiencing 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 aseven-hour day.

8. Dont ask questions of opposing counsel. Warn yourclient that he or she does not have the opportunity to askquestions of opposing counsel. If your client does notunderstand the question, the plaintiff should say so.


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Additionally, your client may want to ask how opposingcounsel defines a word to better understand the question.This technique will typically result in defense counselstating, well, how do you define that word? Your clientmay also try to shift the focus away from him or her byasking a question. If your client is feeling the need toassert control over the process or is otherwise irritatedwith opposing counsel or the style or content of thequestions being posed, instruct your client to answer thepending question and take a break. Additionally, warnyour client that if others are in the deposition, such as aspouse or co-plaintiff, the deponent should not expect tohave the opportunity to verify a date or other fact duringthe 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 witnessmay be requested by the defendants counsel. EEOC v.Johnson & Higgins, No. 93 Civ. 5481, 78 FEP 1127, 1998U.S. Dist. LEXIS 17612 (S.D. N.Y. Nov. 6, 1998). Theplaintiff should NOT review any work product you wish tomaintain as confidential. If the plaintiff reviews letters orother communications that are attorney-client privileged,the facts of what was reviewed are discoverable, butinstruct your client not to answer any question that seeksinformation about the communications between you andyour client. Schanfield v. Sojitz Corp. of America, 258F.R.D. 211 (S.D.N.Y. 2009) (voluntary disclosure waivesattorney-client privilege). If you allow questioning tocontinue, the privilege could be deemed waived; on theother 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).

2. Materials that should be reviewed by the plaintiff.

a. The complaint:


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Is it accurate?

N.B., encourage your client to remember that thecomplaint is merely a lawyers attempt to describethe facts. The client should not feel shy aboutsaying, my lawyer made a mistake, and correctingerrors.

Can plaintiff give facts to support the summary legalallegations?

Is plaintiff familiar with it?

b. Plaintiffs answers to interrogatories/document

requests:

Are they honest and accurate?

Are they complete?

Have any significant changes occurred since theywere provided?

c. Files obtained in discovery from any sourceconcerning plaintiff (make sure you have askedopposing counsel to produce all records receivedpursuant to subpoena and that those records are inyour 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 newsources for documents?


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Where applicable, how will plaintiff explain the factthat they do not support the plaintiffs version ofevents?

d. Other key documents:

There may be other documents that do not nameplaintiff 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 ofdocuments, the plaintiff will be comforted by discussingthe types of topics that will be covered in the deposition.You need not review every fact under every topic that willbe covered. But you must cover the important topics,and the potentially troubling areas should be discussedand reviewed.

2. At least the following topics will be covered. How muchdetail is required in your review with the plaintiff dependson facts.

a. Education, prior and current employment

b. Post-termination income/efforts to find comparableemployment

c. Employment practices of employer

d. Relations with supervisors/managers (throughoutemployment)

e. Employment history (discuss accolades, awards,raises, any problems with performance)

f. Events leading to adverse action


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g. Meeting(s) regarding adverse action

h. Reason given for adverse action, identifydecision-makers

i. Companys treatment of others similarly situated (forany performance issues and each adverse action)

j. Witnesses

3. Prepare for some of the following general questions aswell:

a. What makes you think your termination (denial ofpromotion/raise, etc.) is because of yourage/sex/race/disability?

Some employers counsel do not ask this questionin deposition. They focus on attacking theconclusion of discrimination by attacking plaintiffsfacts. But if this kind of question is asked and theplaintiff has no answer, fumbles an answer, or givesa poor answer, plaintiffs chances for success arediminished. 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 thedeposition over with, may be tempted to say, I dontknow, or I dont have any evidence. It is criticalfor the plaintiff to be made to understand that asopposed to the general instruction to answer onlythe question that is asked without volunteering

information, for purposes of this inquiry, the plaintiffmust describe the circumstances that led her or himto seek the advice of counsel or file a charge ofdiscrimination.

b. You have no knowledge of claims of discriminationby others, do you? To the extent other claims


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were identified by the company in written discoveryresponses, these source materials should beprovided to the plaintiff. If plaintiffs counsel simplytells plaintiff, the answer during the deposition tohow the plaintiff knows of other claims ofdiscrimination may be my counsel told me aresult with more than one obvious problem.

c. The decision-maker, Mr. Williams, believes heterminated you because your report was late? Theemployer will try to get plaintiff to admit that theemployer believed the reasons for the terminationwere correct, even if the plaintiff alleges that thebelief was incorrect. Prepare the plaintiff to

respond that the decision-maker with the discrimi-natory animus did not believe that the legitimatebusiness reason put forth by the employer was thecause of termination. Moreover, you should objectif a question assumes a fact not in evidence.Ideally, your written discovery requests seek theasserted legitimate, non-discriminatory reasons andthe identity of the decision-maker(s) and eachperson with input in the decision. If you have thisinformation, you can discuss with your client whatfacts and circumstances exist that will be evidencethat the legitimate, non-discriminatory reason ispretextual.

d. You dont know of any discrimination suffered byMiss Jones, do you? Sometimes the employer willidentify another in the protected class (usuallysomeone 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 otherindividual. The plaintiffs response to this questionshould not rule out the possibility of discrimination.Simply state, I did not discuss whether Miss Joneswas a victim of discrimination or not. Of course, ifthe plaintiff observed any racial animus orquestionable decisions, these should be identified.


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E. Practice Some Cross-Examination

Even if you have a plaintiff that understands the facts and is areasonably confident individual, it usually pays to practice somecross-examination. The calmest plaintiff can lose the ability tothink clearly if the first time they are cross-examined is byopposing counsel. While some opposing counsel adopt afriendly tone in deposition, some will assume a hostile attitudetoward the plaintiff. Plaintiffs can and should be prepared forthis 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 thedeposition begins.

II. DEPOSING THE DEFENDANTS WITNESSES

Here is your opportunity to bring into focus the presentation of theclaims and defenses. You will meet the witnesses, spend time withthem, ask what they know, and uncover their strengths andweaknesses. Preparation for taking depositions in employment

cases is as important as the depositions themselves. Although thereis a great deal more that can be said of depositions, here are thehighlights.

A. Identify the Purposes/Goals

Every effective deposition has at least one. Some of thesegoals are the same for the depositions of the companyswitnesses. You will want to:

1. Evaluate the witness under direct examination.

2. Test the witnesss ability to handle cross-examination.

3. Find out what makes the witness angry or impatient orconfused.


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4. Gather impeaching testimony.

5. Learn the theory of the defendants case.

6. Force an early settlement.

B. Conduct a Pre-Deposition Investigation

Prior to conducting a deposition, you will want to educateyourself as thoroughly as possible. At least the following itemsshould be addressed:

1. Interview potential witnesses after identifying the topicsyou want to discuss with them. Speak with the plaintiff

and with prior and current co-workers (to the extentethically appropriate in your jurisdiction) after outlining thetopics to cover.

2. Identify and review all company documents pertinent tothe claims raised by the plaintiff.

3. Analyze plaintiffs personnel file and other recordsconcerning the plaintiff. Identify those documents thatwill assist you in establishing the facts you need toestablish in a deposition. For example, duringdepositions of the companys witnesses, you will want toobtain the admission that the favorable facts in theperformance file are true.

4. Review any prior declarations or descriptions of therelevant events prepared by the company. If aninvestigation occurred at the company, review thestatements prepared or reports made. If a written

submission was provided to the investigating agency, youwant to obtain and review it. Identify the portions of thesedocuments that you want to use to obtain helpfuladmissions.


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5. Identify facts and events you want each company witnessto admit or deny knowledge of.

C. Identify Who to Depose

1. The management person(s) who made the adversedecision:

a. You need to nail down the reason for the decision,the facts underlying the decision, and how thosefacts were obtained.

b. Dont forget to get admissions of good facts as well,lack of knowledge of company policies, knowledge

of good performance by the plaintiff, complaints byplaintiff.

c. Be prepared to substantiate notice of deposition fordeposition of upper management. See, e.g., In reBridgestone/Firestone Inc., Tires Products LiabilityLitigation, 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-fallcase); Travelers Rental Co. v. Ford Motor Co., 116F.R.D. 140 (D. Mass. 1987) (plaintiffs alloweddepositions of four high-ranking Ford officers in anti-trust 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. TaberInstrument Corp., 53 F.R.D. 645 (W.D.N.Y. 1971)(plaintiff is entitled to test the chief executives lackof knowledge); Overseas Exch. Corp. v. InwardMotors, Inc., 20 F.R.D. 228 (S.D. N.Y. 1956)(same);


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2. The individuals who participated in the adverse decision:

a. Often individuals who participated in the decision orwrote a performance evaluation will undercut thedecision-makers view that the conduct was a validbasis for termination or will contradict the decision-makers testimony.

b. These individuals may divulge additional informationgiven to the decision-maker that are not included indocuments.

c. The conduct of these individuals may demonstratethat the decision-makers adverse decision was

infected by their bias. They were biased againstwomen, blacks, etc. and that bias affected theirevaluation of the plaintiff. Stalter v. Wal-MartStores, 195 F.3d 285, 288 (7th Cir. 1999).

3. A Human Resources representative:

a. If you want the importance of company policyestablished, ask the Human Resourcesprofessional.

b. This witness will tell you in an unemotional way whatpolicy should have been followed.

4. Supervisors who evaluated the plaintiff favorably.

5. Dont forget 30(b)(6) depositions:

a. Company policies

b. Compensation and benefits

c. An investigation in the case

d. The reduction in force program


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e. Training and training records

f. Performance appraisals

g. Financial circumstances of the company

6. Others to consider:

a. The successor/replacement employee

b. The comparative employees

c. Secretaries to decision-makers

d. Prior employees

e. Other individuals involved in the poor performanceepisodes

f. Person who verified interrogatory answers

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 outlinestarts by including at least the following topics to becovered:

a. Introductory remarks

b. Education/prior employment history (there are oftenreal gems in the background my favorite was the

credit manager, selected to replace the plaintiff atthe defendant company because of his superiorcredit skills, who admitted that he had to leave aprior employer whose credit he managed because itwent bankrupt).


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c. Current employment: For the replacement, requesta description of job duties; these may not matchwhat the interrogatory answers or decision-makerssaid. Obtain the compensation and prospects foradvancement from peers and replacements.These will be needed for damages calculations.For the coworkers/supervisors, ask them to describetheir job duties. You will find who is doing plaintiffs

job after termination. For example, if the companysaid the job duties were eliminated, yet, the27-year-old administrative assistant states sheassumed the task, this may help an agediscrimination case. Ask employees to describethe current and former work environment. They

may not support managements assertion that therewas chaos while your client was employed, or theymay establish that there was chaos before and afterplaintiff was employed, suggesting that it wasnt theplaintiff who caused the disruption.

d. Employment policies/practices of employer,covering those at issue, disciplinary policies, hiringpolicies, termination policies

e. Relations with plaintiff

f. Employment history, prior disciplinary action,counseling and performance evaluations

g. Events leading to termination or other allegedwrongful conduct

h. Any meeting at which the plaintiff was informed of

adverse action; e.g., termination meeting,disciplinary meeting, etc.

i. Reasons for employers actions (termination, denialof promotion/raise, etc.)


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j. Company treatment of other similarly situatedindividuals

k. Witnesses

l. Post-termination income (you will need this for thereplacement as a possible basis for plaintiffsdamages calculations; lavish post-terminationexpenditures may also undercut the companysassertion that plaintiffs termination was requiredbecause of the need to cut costs).

2. Use of documents

a. The outline should note the documents that will beused in each topic area.

b. Documents can be used to obtain admissions thatare required. Witnesses often agree withstatements that are set forth in writing. Theyusually agree with documents they authored, sawand approved. Sometimes they agree withdocuments they saw and did not object to at thetime they first saw the document. Sometimespreliminary questions leading to the admission arerequired, and these should be noted for theadmission being sought in the deposition.

c. Take care in phrasing the statement you wantpreserved. Incorporate the substance into yourquestions. Generally, you want the substantivestatement included in the question posed. Forexample, when you seek agreement from the

witness with paragraph 3 of Exhibit 21, do not ask,Do you agree with Paragraph 3, Exhibit 21? Sucha question may suffice for summary judgmentpurposes when a judge reads a substantive fact inthat 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


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want a question that states the substantive fact atissue, not so you agree with what is set forth inParagraph 3 of Exhibit No. 21, but You agree thatyou requested the cash flow report be done by April21.

Beware using questions like, Anything else? Forexample, after you cover the decision-makers threereasons for termination, you want to limit thereasons for termination to those set out by thedecision-maker in his termination memo. Do notask, 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, hertardiness on June 3, and her early departure onJune 7. Is that correct?

d. To the extent you receive documents at the start ofthe deposition, on the first break, incorporate theminto your inquiry and outline.

e. Remember not all documents need to be shown tothe witness to be used. Sometimes, you use thewording in a document and ask if the witnessagrees. You may obtain a contradiction betweenthe testimony and the document this way. If youshow the witness the document, you will alert him orher to the potential contradiction and, instead, youwill not receive a contradiction or you will receive anexplanation for any contradiction.

3. Review any notes you made. Incorporate these areas of

inquiry into your outline. When doing written discoveryrequests, I am sure you noted certain areas of inquiry toaddress in depositions. In addition, prior depositionssuggest areas to be covered by subsequent depositions.Incorporate these notes as you prepare the outline.


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4. Ask for the plaintiffs input. Ask the plaintiff to write anarrative of the topics you should cover with the witness.While you will not use all the plaintiffs suggestions, veryoften plaintiffs suggested topics or facts are very helpful.

5. Check for completeness of the outline.

a. Review the documents, making sure they areincluded in each part of the outline where you wantto use them.

b. Make sure the elements of all the causes of actionare covered by the outline.

c. Think about what your theory and strategy are foreach issue in the case.

III. CONDUCTING THE EFFECTIVE DEPOSITION

A. Introductory Instructions

1. Introductions are made.

2. Ask the witness to tell you if he or she does notunderstand your question. Tell the witness that if he orshe does not ask you to rephrase the question, thenyou assume the witness understood it, and ask thewitness to agree that is fair.

3. Ask the witness if he or she has had a good nights sleep.

4. Ask the witness if he or she is taking any medication thatwould interfere with his or her memory or ability to testify

accurately.

B. Attitude Toward Witnesses

1. A friendly, non-threatening approach is usually morefruitful than an antagonistic approach. All witnesses are


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people, and people prefer, and will usually be moreforthcoming, with a friendly manner.

2. Sometimes a tough professional approach will enhancethe strength and sincerity of your effort on behalf of theplaintiff. The company witness must know that you havea good case.

3. Tell the witness he/she can take a break when needed,but not when a question is pending.

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 clearfacts on the record.

2. 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 companypolicy applied to others, company policy applied to thewitness, or company policy applied to the plaintiff.

3. If you get the admission, you need to stop.

4. Develop concise summaries of broad topics so you havea concise record of important statements.

5. Do not assume all relevant documents were produced.Ask the witness if notes were taken; ask for the witnesssbusiness card; ask the witness to identify relevantdocuments.

D. Specific Topics to Cover

1. Relationship with the plaintiff.

a. Are you friends? Rarely is the supervisor a friend.


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

2. Why the plaintiff suffered the adverse decision.

a. Ask each witness involved in the decision what wasthe basis for the decision.

b. Ask what facts support each reason for termination.(You will be surprised that often there are nospecific facts supporting the reason(s) for theadverse action.)

c. Ask how they learned the facts or what they did tolearn the facts on which they rely. (If they rely onsomeone else, you should depose the source of thefact too.)

3. Employees knowledge, or lack thereof, of companypolicies.

a. If you want to establish a company policy, have theemployee identify the policy (usually the HumanResources witness is the best one to ask).

b. Find out if the decision-makers knew the companypolicy or policies. What training did they receive?

c. The absence of any other employment policy.

d. Admission that employees should be given prior

warning on the subject on which termination isbased.

e. Admission that no prior warnings were given to theplaintiff.


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f. Admission that it is only fair to tell employees whatthey have done.

g. Admission that a fair employer tells employees whatthey are doing wrong so that they can improve theirperformance.

4. The witnesss understanding that each reason given fortermination was not a sufficient ground for termination.This is often obtained from the witness when reviewinglists of reasons for termination set out in disciplinarypolicies, rather than when asking about the plaintiff.

5. The employers understanding that each reason given for

termination has not been a ground for termination in thepast.

6. If the basis for termination is not reflected on performancereviews, admission that reason for termination was not inperformance reviews.

7. Obtain admissions that plaintiff performed well. Admitpositive statements in performance evaluations, admitcompany awards given, admit compliments given toplaintiff.

8. Obtain admissions of objective facts that demonstrateplaintiff was a good performer. Admit that sales numberswere strong. Admit that sales were stronger thanindividuals retained. Admit that department came inunder budget under plaintiff, other departments did not.

9. Obtain admission that other retained employees also had

same performance problems as the plaintiff.

10. Obtain admissions regarding the workforce. Admissionsthat there are no other employees of the same race, sex,age, or other status that fill positions in uppermanagement, supervisory, professional, or in department.Admission that diversity of workforce has not improved or


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has worsened. These types of admissions areparticularly helpful if contrasted with the time period inwhich the company is asserting its diversity effortsoccurred. For example, So from 1994 to 1996, when theDiversity Task Force was at work, the management in thefinance department remained all male, correct?

11. Compare qualifications of plaintiff and person selected,retained or replacing plaintiff. Obtain admission thatperson selected has less objective qualifications, lessexperience in industry, less experience at employer, lessexperience in management, less experience in sales,fewer academic credentials, fewer professionalcredentials, etc.

12. Admission that qualities of plaintiff (that replacement didnot have) were important for successful performance ofthe job.

13. Admission that other claims of discrimination were raisedbecause of race, sex, age, etc.

14. Admission that supervisor or decision-maker has noinvolvement in diversity efforts of company or has noknowledge of diversity initiatives of company.

15. For harassment claims:

a. Ask about the witnesses knowledge of companypolicies against harassment and of the policies to befollowed when employees experience it. Ask whatthe company policy requires.

b. Where the policy was not followed, have the HumanResources professional outline the importance andreason for the company policies on harassment.

c. Have supervisors admit complaint(s) were made byplaintiff or others.


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d. Have each supervisor detail what, if anything, theydid and make sure you have them identifyeverything they did.

e. Admission that they did not do anything; that theydid 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 actionby company taken.

f. If delay in responding is an issue, make sure yourquestions state the time between complaint and thecompanys response; e.g., Plaintiff made hercomplaint to you on March 17, 2008. You

interviewed her about her complaint three monthslater, on June 16, 2008?

16. For disability claims:

a. Have witness admit he was aware of healthcondition.

b. Have witness admit that he was aware of symptoms.

c. The importance and frequency of the tasks that theemployer alleges are essential. Obtain the numberof times a specific task, that the employer says isessential, was performed in a week, month, year.(This is a good question to ask the replacement.)

d. The employees ability to perform various aspects ofthe job at issue with accommodation.

e. The employers failure to grant an accommodation.

f. Admit the cost of the accommodation.


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E. Dealing With Obstructionist Opposing Counsel

1. Counseling witness between question and answer. If theattorney and client discuss an answer to a question, whenback on the record, withdraw the question and return to itlater in another context.

2. Consultation after receiving a good answer. Leave thetopic. If the witness later states that he wants to add to aprior answer, ask if any prior answers were false, or if hewishes to change his testimony after talking with hisattorney.

3. Anticipated obstructionist tactics. Videotaping

depositions limits the antics of many opposing counsel.

4. Repeated disruptive conduct by opposing counsel. Seekcourt intervention. Many courts permit adjudication bythe judge or magistrate by telephone. Sometimes, ifanticipated, a special master can be appointed. Placetone and actions of opposing counsel on the record.

F. Final General Deposition Tip

Record your impressions about each deposition. Take 20minutes after the deposition and write down the demeanor ofthe witness, the topics that he handled well or poorly, whatmade him nervous, angry, or tearful. Write down how a jury willview 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 youmust do them when the impression is fresh.