Plaintiff’s Counsel v. HR: Survive Your Deposition CI-SHRM Legal and Legislative Conference Emily S. Pontius February 25, 2016

Agenda The Basics Preparation Testifying Best Practices Who, What, When, Where, Why Preparation Meet, Review, Remember Testifying Listen-Think-Talk, Objections, Standing Your Ground Best Practices © 2015 Fredrikson & Byron, P.A.

The Basics Who What When Where Why © 2015 Fredrikson & Byron, P.A.

Why me? Decision Maker Expertise regarding HR policies Historical Knowledge © 2015 Fredrikson & Byron, P.A.

Deposition Preparation © 2015 Fredrikson & Byron, P.A.

Deposition Preparation Meetings with Counsel Attorney Client Privilege Explanation of Deposition and Process Case Discussion Recalling Facts Organizing Thoughts Opposing Counsel © 2015 Fredrikson & Byron, P.A.

Deposition Preparation Tell the truth Stick to what you know Get it over with © 2015 Fredrikson & Byron, P.A.

Deposition Preparation Documents may be the focus of preparation and the deposition Counsel will tell you what to review © 2015 Fredrikson & Byron, P.A.

Deposition Preparation If you have documents that have not been produced, give them to counsel Do not use them for preparation without first consulting with counsel Do not create new documents © 2015 Fredrikson & Byron, P.A.

Testifying © 2015 Fredrikson & Byron, P.A.

Testifying at your deposition Always tell the truth Stick to what you know Be thoughtful Listen Pause Ask for clarification Speak carefully Stop after you answer the question © 2015 Fredrikson & Byron, P.A.

Testifying at your deposition Answer “yes” or “no” Review exhibits completely and carefully Answer when you are ready © 2015 Fredrikson & Byron, P.A.

Testifying at your deposition Are these dos or don’ts? Guessing and Speculating Making Assumptions Answering “I don’t know” Volunteering Information © 2015 Fredrikson & Byron, P.A.

Testifying at your deposition More about Telling the Truth Speak from Personal Knowledge Not What you were told and What you believe would have happened What should have happened © 2015 Fredrikson & Byron, P.A.

Testifying at your deposition Listen closely Do not accept the questioner’s assumptions or speculation © 2015 Fredrikson & Byron, P.A.

Testifying at your deposition Correct mistakes as soon as possible before the deposition is over Self-correct on the fly Self-correct after a break Have company counsel ask you questions to correct your testimony © 2015 Fredrikson & Byron, P.A.

Testifying at your deposition Your job is to answer questions You control the tempo and timing Answer at your own speed, even if the questions are fast Don’t be bullied into agreeing with opposing counsel © 2015 Fredrikson & Byron, P.A.

Testifying Q: Joe was an excellent employee before January 1, correct? A: Correct. Q: Isn’t it correct that he had no discipline in his file and no complaints? A: Yes. Q: He told you about his disability on January 5, correct? Q: And his performance problems started on January 16, correct? Q: It’s possible, isn’t it, that his performance problems were because of his disability? A: That’s possible. Q: So you would agree with me that you terminated his employment because he had a disability, correct? © 2015 Fredrikson & Byron, P.A.

Testifying: Slow down and think Q: Joe was an excellent employee before January 1, correct? A: I don’t know, I was not his supervisor. Q: No discipline in his file and no complaints, correct? A: I am not aware of any documented discipline or complaints… Q: You found out about his disability on January 5, correct? A: He told me he would be absent for an appointment, that’s all… Q: And Joe’s performance problems started on January 16, correct? A: He may have had issues before that, but not documented. Q: It’s possible, isn’t it, that his performance problems were because of his disability? A: I don’t know the reason. He did not provide… despite opportunity Q: So you would agree with me that you terminated his employment because he had a disability, correct? © 2015 Fredrikson & Byron, P.A.

Stand Your Ground Don’t be pressured to change your answer just because counsel asks over and over You can rely on managers when making decisions Q: Did you ever double-check this before you recommended termination? Q: You only needed a 5-minute conversation to decide to fire this woman? You have good judgment—Defend it. Know your qualifications Defend your decisions © 2015 Fredrikson & Byron, P.A.

Testifying: Stay in your lane Q: If you were the boss, would you have made the decision to fire Joe? A: I am not the boss. I can’t speak to that. I did not supervise him and I don’t know that area of the company, so I can’t speak to that either. © 2015 Fredrikson & Byron, P.A.

Testifying at your deposition When you answer the question, Stop! Answer the question asked. Don’t do the other side’s work for them. © 2015 Fredrikson & Byron, P.A.

Common traps Subject attributions False predicate Summarized testimony “Would you say it was ‘substantial’” “Would you say it ‘possibly/probably’ happened” False predicate “Is this similar to how other employees were terminated for making a claim” Summarized testimony Make sure summary is perfect before agreeing or answering further Rephrased testimony Make sure rephrasing is perfect before agreeing or answering further Vague, ambiguous, or hypothetical questions Absolutes (i.e., never, always, etc.) The “box out” Q: Have you told me everything? A: Yes, that I can recall now. © 2015 Fredrikson & Byron, P.A.

and stick to what you know Deposition pointers Listen carefully Understand before answering Think about truthful and accurate answer Stick to what you know Answer the question and stop Tell the truth and stick to what you know © 2015 Fredrikson & Byron, P.A.

Best Practices Today Stay calm Give difficult employees every chance to succeed, and document those efforts Keep management on the right track. You are the expert. Today’s email could be tomorrow’s deposition exhibit – be professional and painfully polite Document the facts of in-person and telephone communications Avoid unnecessary delays in providing information and paperwork to employees © 2015 Fredrikson & Byron, P.A.

Questions or Comments? © 2015 Fredrikson & Byron, P.A.

Thank you! © 2015 Fredrikson & Byron, P.A.