Preparing the Executive for Deposition Deborah Adams Frost Brown Todd LLC Charles High Kemp Smith LLP

They want to do what to me?

What is a “Deposition”? One step in the factual investigation of a lawsuit After a lawsuit is filed, lawyers send paper discovery requests Next is usually depositions of people with knowledge of facts

What Is A Deposition? A deposition is a process whereby an attorney asks a witness questions, which the witness must answer under oath. You will be asked questions about policies and practices of your Company You will be asked questions about the Plaintiff and his employment with the Company You will be asked about your role in decisions impacting the Plaintiff You may be asked about other employees and how they were treated You may be asked personal questions about your job, experience and life An attorney for the Company will accompany you to the deposition and make objections on your and the Company’s behalf.

Overview of Depositions Purposes Discover Relevant Facts Nail Down Parties’ Positions Obtain Admissions Create Dread Goals for Plaintiffs –avoid summary judgment; class certification, settlement leverage; embarrassment

What is a deposition? It is NOT a casual conversation It is sworn testimony under oath that can be used in court What is said and how it is said are very important Everything is recorded, typed, and put into booklet form – can read and sign

What is a deposition? May also be videotaped Once concluded, depositions are used to support motions, including motions for summary judgment, and to prepare for trial Many, if not most, cases are settled after depositions and in large part based upon what was said or not said in depositions

What Is a 30(b)(6) Deposition? Federal Rule of Civil Procedure 30(b)(6) allows an examining party to request that a corporate entity designate witnesses to speak on behalf of the company about specific issues listed by the examining party You are speaking on behalf of the Company, not yourself Your testimony can be used against the Company in this proceeding and future proceedings You may be asked and will be prepared to discuss things beyond your personal knowledge

Preparation for Deposition Two areas of preparation Procedural Substantive

Witness Preparation Every lawyer has own way of preparing witnesses Some prepare more than others Many of the techniques are the same regardless of position Additional issues must be covered if the person is the HR Manager, CEO, or other high ranking official

Key Rules for Depositions ALWAYS TELL THE TRUTH LISTEN AND ANSWER ONLY THE QUESTION ASKED DO NOT ANSWER A QUESTION UNLESS YOU UNDERSTAND IT DO NOT GUESS: IF YOU DON’T KNOW THE ANSWER, SAY “I DON’T KNOW” OR “I DON’T RECALL”

Key Rules for Depositions DO NOT VOLUNTEER INFORMATION DO NOT IDENTIFY PEOPLE OR DOCUMENTS UNLESS SPECIFICALLY ASKED ABOUT THEM DO NOT GET ANGRY

Key Rules for Depositions WATCH FOR QUESTIONS WITH MULTIPLE PARTS DO NOT FEEL DEFENSIVE DO NOT TRY TO BE FUNNY BE CONFIDENT-NOT AFRAID LISTEN TO YOUR LAWYER

Deposition Guidelines You are never off the record You do not have to have an opinion You do not have to assume Hypotheticals You do not have to know the answer even if it appears that you should You are in control Breaks when you need one Do not bring anything with you – no briefcase, paper, notes, etc. unless told otherwise

Scope of Testimony You should expect to be asked and to answer general questions about how your Company does business The scope of your testimony depends on your position and experience with your Company Unless you are being offered and prepared as a Rule 30(b)(6) type witness, you should not expect to be testifying about items outside your personal knowledge Limited by time of your employment Limited by your position, business unit, etc.

DEPOSITIONS – LIKE LIFE – MAY NOT GO PERFECTLY

Preparing Your Mind You are in for a long day You will feel out of your element – Resist the urge to be the smartest in the room Resist the urge to show all of your knowledge vs. just answering the question Make sure you hear the question Make sure you understand the question Only answer the question

Truth and Accuracy Do not tell what other people said or what you think unless you are specifically asked to do so Before answering a question, pause for a second and repeat the question in your mind You can refer to documents if needed Do not guess or speculate Be accurate about how sure you are—if you answer and then have doubt about your recollection you can say so Do not assume that long-past events are always dim in your memory

Form of Questions Be sure you understand the question Beware of compound questions Example: “Isn’t it true that the Company has a policy against overtime and managers and often failed to follow that policy?” Beware of leading questions containing half-truths Example: “Seeing how all managers spot checked employees’ hours, they must have known that employees were working off-the-clock?” Beware of yes or no questions Exception: if a question can be truthfully and accurately answered with only a Yes or a No, give the correct answer and stop. Beware of exact distances, numbers, dates and times

Objections and Objectionable Questions Vague Asking for speculation No foundation Compound Overly broad Argumentative Misleading Misstates prior testimony Contains an invalid or unsubstantiated assumption Asked and answered Privileged

Cautions You may be interrupted, but keep calm. You have talked with lawyers, but the content of your conversation is privileged. Do not be upset if there are some inconsistences in your testimony, this is natural. Furthermore, you will have an opportunity to fix it later. Do not be upset if you can’t tell your story all at once – your job is only to answer the question that is asked. Remain dignified at all times, even if the questioning attorney is abrasive or confrontational.

Typical Areas of Inquiry Educational background Work history Work history with Company Personal History/Life Knowledge of Facts Relationship with Parties and Witnesses

Preparation for Deposition Substantive: Legal Theory Applied to Facts Understand the Legal Basis of Plaintiff(s)’ Claims Understand the Company’s Position Review and understand the facts about which you have personal knowledge or will be asked to present

Items for Review Applicable Company Policies Company Documents Personnel Files Communication Documents—Email Pleadings Written Discovery Deposition or other testimony

Witness Preparation Don’t Prepare Yourself Work with counsel Materials prepared to help remember events may be discoverable Don’t review materials not directed by counsel to review Don’t refresh memory by talking to other potential witnesses or plaintiff Don’t give up client – attorney privilege

Witness Preparation Know and understand the legal issues Review with lawyer – things change so be current on law Know what plaintiff has to prove Know defenses being asserted Review legal pleadings

Witness Preparation Don’t Try to Win the Case Not your job Push aside any feelings of guilt for getting sued – it’s a risk of being an employer No duty to educate plaintiff’s lawyer

Witness Preparation Be Confident Don’t get unsettled by questions like “Do you treat all your employees like you treated my client?” And “Do you agree with the decision to fire my client?” And “Would you have done anything different in this case?”

Witness Preparation Know what happened to Plaintiff and why Juries believe executives, especially HR Managers, should know everything Be familiar with who, what, and when Know the investigation (if any) and be prepared to defend it

Witness Preparation Know facts about similar situations in your experience field If none, know there are none If others, know if similar If different, be able to explain why

Witness Preparation Know the rule or policy Background and reason for rule How previously applied Any exceptions Basis for exceptions Why no exception in this case

Witness Preparation Be Professional No humor, smart remarks even if feel under attack Do not show any signs of hostility – plaintiff’s lawyer evaluating how you will appear to the jury Smile, but don’t relax

Key Take Away Points Be truthful and accurate in every answer Answer only the question that was asked Do not volunteer information unless it is necessary to clarify your testimony Do not be bullied into changing your answer or agreeing with Plaintiffs’ attorney’s characterization of your testimony Remember that you are testifying on behalf of the Company and may be bound by your answers in this proceeding and future proceedings

Prepare Tell the Truth After the first five minutes, have fun!

Questions

Preparing the Executive for Deposition Deborah Adams Frost Brown Todd LLC Charles High Kemp Smith LLP