Last updated Jan. 30, 2018.
Some employment claims are settled with employers without resorting to a lawsuit. The rest are litigated through the judicial system, beginning with an attorney filing a formal complaint in court on behalf of the employee. If the claim proceeds far enough without settling, it is almost a guarantee that the employee will be deposed as part of the “discovery” – or fact-finding – phase of the lawsuit.
We’ve seen countless depositions depicted in TV and movie legal dramas. But what is a deposition, exactly? And as the plaintiff in an employment lawsuit, what should you do — or more importantly, NOT do — during your deposition to protect your claim?
How to Handle Deposition Questions
Simply put, a deposition is a method of obtaining evidence as part of a lawsuit. The evidence collected is verbal testimony, offered by a deponent who answers questions posed by an attorney. A deponent can be a witness to important facts in your case, such as the co-worker who heard your supervisor make inappropriate sexual comments whenever you walked past. A deponent can also be a key decision-maker in your case, such as the manager who terminated your employment. As plaintiff and a named party, you will likely be one of the first individuals deposed in your suit.
Depositions usually occur in law-office conference rooms. As the deponent, you will be present with your attorney, as well as an opposing attorney defending the employer in your claim. A court reporter will also be present to record and create a written transcript of every question posed and answer given.
Although the setting is more intimate and casual than a courtroom, don’t be fooled: All answers that you give during a deposition are sworn testimony and admissible at trial. That means if your case proceeds to trial, and you are questioned from the witness stand, the opposing attorney can and will question you about answers you gave on the record during your deposition — even if the deposition occurred months or years before your trial. In fact, the opposing attorney will point out any damaging admissions in your deposition, as well as any important discrepancies between your deposition and trial testimony. This technique serves to cast doubt on your credibility with the jury, who hold the fate of your claim in their hands.
Given the foregoing, your deposition may well be the most critical piece of evidence in your employment lawsuit. No pressure there, right?
The good news, however, is that the rules for performing well in your deposition are both simple and few. Following these rules will ensure that you give testimony that bolsters your claim and does nothing to leverage your employer’s position.
1. Don’t fall for the Good Cop/Bad Cop routine.
Opposing attorneys sometimes adopt an aggressive stance when questioning plaintiffs, using a tough demeanor and tone. Other times, opposing attorneys deploy a soft touch, smiling and delivering questions in a conversational tone. They may even chat and joke with plaintiffs when off-the-record.
Whether your opposing attorney comes across as threatening or friendly, the purpose is the same: to destroy your focus and knock you off your game. A “tough” attorney may try to rattle you with theatrics so that you can’t think straight. A “nice” attorney might try to make you feel like you’re talking to a sympathetic friend, so that you wind up volunteering damaging information.
Either way, stay calm and on your guard. To the extent that you can, it’s best to divorce yourself from the attorney’s expressions, mannerisms, and tone. Instead, pay attention to their words. Respond to what they’re saying as opposed to how they’re saying it.
2. Tell the truth.
This rule is iron-clad and without exception. Lying under oath is perjury, which is a felony. Moreover, lies run a very high risk of being exposed by contradictory employer evidence, demolishing the strength of your claim if not eliminating it outright. As such, keep your answers truthful even when they do not inure to your benefit. For example, if opposing counsel asks you whether you engaged in a heated argument with a co-worker, and you in fact did, simply admit it.
3. Just answer, don’t argue or lose your cool.
For those of any temperament, this rule is particularly tough. However, the fact is, opposing counsel will often phrase questions or use a tone of voice to needle you and elicit an emotional, “fight-or-flight” response. Their aim is to make you angry or upset enough so that you lose focus on the question and give a damaging answer.
Don’t. Maintain your calm and remember that both attorneys are allowed to ask questions and create a record during your deposition. That means, once opposing counsel has finished with questioning, your own attorney will step in with questions that will give you the opportunity to explain and defend yourself.
EXAMPLE: Opposing counsel shows you a copy of the negative — and retaliatory — performance review you received right before your termination. Opposing counsel asks, in an exaggerated tone of voice: “Your review score was really quite low, wasn’t it? In fact, it states right here that you were ‘error prone’ and had ‘an attitude problem’ — am I reading that correctly?”
You may know that the review in question was bogus and a pretext for your termination. However, painful as it is, you can’t lose it and blurt: “But I was being set up! It’s all lies in retaliation for me complaining about the accounting fraud! Sure, I made a few mistakes — but everybody did! Just ask!”
Instead, you should respond with a neutral: “That is what the document you are showing me states.” Later in the deposition, after opposing counsel is through, your own attorney will ask you about all your prior good reviews, promotions, bonuses and recommendations from clients. In other words, don’t panic! Your attorney will be there to expose the review as pretextual.
4. Only answer the question asked. Don’t volunteer or anticipate.
When a question calls for a factual answer, only supply the requested facts — nothing more.
EXAMPLE: You are a plaintiff in a race-discrimination suit, alleging your manager made racist remarks and jokes at your expense. Opposing counsel asks: “Did you attend an after-work birthday party for your manager in May of 2016?”
Don’t answer: “Oh yeah — I went to his birthday party every year. And to his house a couple times for barbecues.” Perhaps you felt obligated to attend these events as your manager’s employee. Perhaps other managers and higher-ups attended these events and you simply wanted the chance to network and make a good impression. Nevertheless, your answer raises the issue of whether you enjoyed a continuing social relationship with the same person you’re accusing of discrimination — an issue that never should have been raised in the first place. A simple “yes” would have sufficed.
On a related note, don’t anticipate opposing counsel’s line of questioning. For example, when counsel asks you, “Were you at work the morning of March 8th?” don’t respond, “Yes — but management is lying and says I wasn’t.” Simply respond, “Yes, I was.”
5. Get comfortable with — or ignore — an opposing attorney’s silence.
This is key if you are to avoid volunteering information. After a deponent answers a question, it’s a common attorney trick to respond with silence or nodding. Since so many of us are uncomfortable with lulls in conversations, deponents often reflexively react to “fill the silence” by offering more details, even when this is not in their best interest.
Let opposing counsel “clam up” and pause, even if it feels awkward. Remember, this isn’t a social chat, but rather your deposition.
6. Watch out for conclusions disguised as yes/no questions.
Opposing counsel is seeking answers from you that will form a story favorable to the employer. Toward that end, a favorite attorney technique is to ask deponents a question that sneakily implies a false premise or conclusion, yet calls for a “yes” or “no” answer. The attorney hopes to trap you into affirming or denying an implied premise or conclusion that hurts you, but helps the employer.
To avoid this trap, listen carefully and stay alert. You might also need to break down your answer so that you don’t inadvertently give your employer a helpful snippet of testimony.
EXAMPLE: You are the plaintiff in a sexual harassment claim. Opposing counsel will never ask you: “If the harassment was that bad, why did you wait six months before complaining to HR?” Such an open-ended question gives you the opportunity to fully explain and justify your actions.
Instead, opposing counsel poses the following question, calling for a yes-or-no answer: “So you suffered this severe and horrible harassment, and it was so terrible you had to go to the doctor for anxiety, but you waited six months to say anything about it?” When you answer with a simple “yes,” you affirm the implication that the harassment was, in fact, not all that severe or even existent.
A better approach is to break down your answer in a way that refutes this implication, without being overly argumentative: “Yes, I suffered severe harassment. Yes, it was so severe that I was forced to seek medical attention for anxiety. I had reasons for not complaining sooner, but after six months, I determined I had no choice but to complain to HR.”
This answer is not argumentative because it doesn’t detail a laundry list of justifications for the timing of your complaint. It simply refutes the implication that you did not suffer harassment by stating that you had “reasons” for not complaining initially. Any employment defense attorney worth his or her salt will not ask you to describe those reasons. Again, you can leave that to your attorney, after opposing counsel is through with defensive questioning.
7. Never be afraid to answer “I don’t know,” “I don’t remember” or “I don’t understand.”
Because litigation moves so slowly, depositions take place long after the critical facts of your claim occurred. As such, there will likely be questions regarding dates or details that have grown fuzzy for you in the interim.
When faced with such questions, don’t hedge your answers or take your best guess. That’s a foolhardy approach, especially since the opposing attorney may very well know the answer already. For instance, let’s say the attorney asks you where an important instance of discrimination occurred, and you can’t recall the answer. If you respond that you “think it was in my manager’s office” when the attorney already has the report you submitted to HR stating that it was “on the shop floor,” you have just given him evidence that undermines your credibility.
A better approach is to simply answer: “I don’t remember where the incident occurred. Do you have a document that would refresh my recollection?”
In the same vein, if an attorney’s question is unclear, don’t try to play mind-reader and answer the question you think is being posed. Just say: “I don’t understand. Could you repeat or rephrase the question?”
Contact an Attorney to Help with your Deposition Today
Here at Zatuchni & Associates, we extensively prepare and support clients in advance of their depositions to ensure optimal results. If you believe you have a valid claim of workplace discrimination or retaliation, call our offices today for a free consultation.