Employment Lawsuit Deposition: How to Succeed

How To Succeed in a California Employment Lawsuit Deposition

Introduction

After you file a lawsuit against your former employer for wrongful termination, harassment, discrimination or any other claim arising from your former employment, the lawyers engage in the “discovery process.”  The discovery process includes exchanging documents, answering written questions, and issuing subpoenas to gather evidence to prove your case.  In most lawsuits, the most significant event during the discovery process, and the part where the plaintiff-employee is most directly involved, is the Plaintiff’s deposition.

What is an Employment Lawsuit Deposition?

An employment lawsuit deposition is a formal question and answer session taken under oath at the opposing attorney’s office before a court reporter, who transcribes everything that is said in order to create a transcript of the deposition.  Often times, depositions also are videotaped by the attorney conducting the deposition.  Of course, your attorney also will be present at the deposition and sitting right beside you.  Your attorney’s job at the deposition is to object to any improper questions, but otherwise you must answer every question to the best of your ability.

Am I Required to Participate in a Deposition if I Sue My Former Employer?

As the plaintiff that filed the lawsuit against your former employer, the employer-defendant has the right to take your deposition.  The employer’s attorney notifies you of your deposition by sending your attorney a document called a “Notice of Deposition,” which lists the date, time and location of the deposition.

Beyond that schedule for the deposition, the Notice of Deposition does not include any other indication about the questions that will be asked, the topics that will be covered, or the documents that the employer’s attorney will ask you about during the deposition.  In fact, with a few exceptions, the employer’s attorney can ask you about virtually anything at your employment lawsuit deposition, but practically speaking the main topic ordinarily is the claims asserted in your lawsuit.

Because the precise questions, topics and documents you will be questioned about during your employment lawsuit deposition are unknown, thorough preparation for your deposition is essential.  Reviewing the facts of the case, a timeline of events, and all of the relevant documents will help you testify clearly, accurately and concisely.  Additionally, understanding some of the most common “tricks” and tactics that attorneys use during depositions can help avoid pitfalls that trap unprepared deponents.

After taking and defending thousands of depositions over the past thirty years in hundreds of lawsuits, Matt offers the following essential tips for successful completion of a deposition.

Do’s: What You Should Do During Your Deposition

1. Tell the Truth
   • Under all circumstances, and without exception, tell the truth. The truth will never hurt your case, but a lie can be devastating. Your attorney can work with the truth but cannot salvage a fabrication.
2. Wait Until the Question is Completed Before Answering
   • Even if you anticipate where the question is going, wait until it is fully asked before you respond. This prevents misunderstandings and ensures the court reporter can accurately record your testimony.  In normal conversation, it is quite common to start talking before the speaker finishes talking when you know the answer and the person is requesting specific information.  Resist that urge because the complete question often is limited to specific circumstances.
3. Insist on Clarification if You Don’t Understand a Question
   • If a question doesn’t make sense to you, ask the opposing attorney to rephrase it. You should not attempt to answer a question that is unclear.  Lawyers are overeducated, and often use “fifty cent words” that normal people do not understand.  Don’t be afraid to admit you don’t understand a word the lawyer is using – there are no “stupid” questions.  On the other hand, answering a question that includes words or phrases that you do not understand is foolish and unwise.
4. Listen to Your Attorney
   • If your attorney starts to speak, stop talking immediately and listen carefully. Follow any objections or instructions provided by your attorney without question.  If you do not understand the objection your attorney is making, do not worry – objections often are technical and meant for the judge.  Objections during a deposition are not intended to be “signals” to the witness.
5. Take Your Time
   • It’s important to take the time you need to think about each question before answering. Depositions are not about speed; thoughtful and accurate answers are your goal.
6. Be Wary of Leading Questions
   • If the opposing counsel asks a question that begins with “Isn’t it true that…?” or similar, be cautious. These are designed to box you into their narrative. Stick with your original answer and do not allow your words to be manipulated.  Do not agree with a statement of fact just because the opposing attorney says its true.  For instance, don’t agree that “Joe Montana is one of the greatest quarterbacks ever” just because the opposing attorney asks “Would it be fair to say Joe Montana is one of the greatest quarterbacks ever to play the game?”  Personally, I have no idea because I don’t actually know Joe Montana’s statistics, but most people would just answer “Sure, yes.”  The ONLY reason the opposing attorney would ask that sort of question is because it is a set up for some other question that is coming that will seek an adverse admission from the you – the opposing attorney is trying to box you in, and needs you to agree to that fact – DO NOT DO IT.  Only agree to things you actually know, don’t guess or just agree because it seems to make sense.
7. Distinguish Between Facts and Hearsay
   • Clearly differentiate between what you know firsthand and what you have heard from others. This distinction is crucial in maintaining the integrity of your testimony.  The facts you “know” are the things you actually SAW, the things you actually HEARD, or the things you actually READ.  If someone told you something, you don’t actually know that fact – the fact you know in that instance only is that the person made a statement to you.
   • Many people make the false conclusion that they “know” something because they believe it strongly.  For instance, someone might say I “know” my child is honest and would never lie.  No, you don’t “know” that – you believe that.  In order to “know” that, you would have to have a record of everything your child ever said and you would have to fact check all of it.  Don’t testify at a deposition that you know something that you only believe to be true – testify that you believe it is true.  Precision is key in a deposition.
8. Admit When You Don’t Know Something
   • If you don’t know the answer to a question, simply state that you don’t know. Never guess or speculate, as this can lead to damaging contradictions.   This comes up most often when describing someone’s motivation for certain actions – no one knows what actually motivated anyone to do anything – we only know what a person described as his or her motivation to take any action.  So if asked “Why did your boss do that?” the proper answer would be “I don’t know, but he told me the reason was X, Y and Z.”
9. Freely Admit Discussing Your Testimony with Your Attorney
   • It’s entirely proper to consult with your attorney about your employment lawsuit deposition. If asked whether you’ve discussed your testimony with anyone, admit that you’ve prepared with your attorney but do not disclose the content of those discussions.  Keep in mind the contents of your conversation with your attorney are privileged and should never be disclosed to the opposing attorney.
10. Be Careful with Estimates
    • When asked to provide estimates, be cautious. Don’t let the opposing attorney force you into narrowing down your estimates beyond what you are comfortable with.  Also, if you cannot make an estimate, you are not required to make one.
11. Insist on Reading Documents Fully Before Answering
    • If presented with a document, read it thoroughly before answering any questions about it, no matter how long it takes.  Confirm that the document is complete.  Confirm that no attachments appear on the document that did not originally appear on the original document.  Identify and note any handwriting on the document.  Identify and note any apparent alterations or modifications to the document.  Identify and note any portions of the document that are illegible or unreadable.  Note whether the document has a “Bates number” at the bottom of the document, which is a serial number attorney’s print on the document to identify it.  If no Bates number is on the document, note that to your attorney.  Every document should have a Bates number on it.
12. Resist Giving Your Side of the Case
    • The deposition is not the time to argue your case. Answer only the question asked and save your full narrative for trial when your attorney will present it in the best light.  A deponent’s primary goal in a deposition is to answer all the questions and conclude the deposition, not convince the other side of the correctness of your claims, etc.  The best thing you can do is be an excellent witness for yourself.
    • Like the question that everyone asks Oprah after appearing on her television show, the VERY FIRST question that every employer asks its attorney after a plaintiff’s deposition is “How did the Plaintiff do?  Was he/she a good witness?”  The company primarily is concerned with your credibility and your ability to make a positive impact on the judge and jury.  Being a thoughtful, reasonable and straightforward witness is the best way to reach that goal.  Arguing with the opposing attorney, making smart-aleck responses, etc. might feel good in the moment, but won’t help you resolve the case in your favor.
13. Remain Calm and Composed
    • Stay calm and unemotional throughout the deposition. Anger or excitement can lead to mistakes or statements that could harm your case.  Many times, the employer’s attorney will reserve the most difficult and contentious questions for the late afternoon when you’re tired, annoyed, and exhausted from many hours of questions.  Keep in mind that if you are not 100%, you can stop the deposition and resume at a later date – simply tell the opposing attorney “I no longer feel 100% capable of testifying my best” and they will stop the deposition because your testimony no longer will be considered reliable.  Alternately, start taking more and longer breaks.
14. Remember the Importance of Precise Language
    • Avoid absolutes like “never” or “always” in your testimony. These can easily be disproven and used against you. Use more measured language.  Don’t be afraid to correct any statement you made during the employment lawsuit deposition if you realize you misspoke or if you overstated or understated any fact.

Don’ts: What You Should Avoid During Your Deposition

1. Don’t Volunteer Information
   • Only answer the question that is asked. Do not offer additional details that haven’t been specifically requested, as this can open you up to further questioning.  Don’t try to anticipate what your answer to the next question will be.  Don’t do this:  “Look, I know where you’re going, and the answer is A, B, C.”  That will not shorten the deposition – it will extend it.
2. Don’t Attempt to Justify or Explain Your Answers
   • Avoid the temptation to justify or explain your answers. You are not on trial during the deposition, and elaborating unnecessarily can lead to complications.
3. Don’t Guess or Speculate
   • If you don’t know the answer, say so. Guessing can lead to errors that the opposing counsel can exploit later in the case.
4. Don’t Provide Information Beyond Your Knowledge
   • If you’re unsure of something, do not try to fill in the gaps. It’s better to admit lack of knowledge than to provide incorrect information.  If you know that additional information is contained in certain documents, tell the attorney you would need to look at those documents.
5. Don’t Reach for Documents or Notes
   • Never produce documents or refer to notes during the deposition unless your attorney has explicitly approved it. Depositions are about the facts you can recall without aid.  Never offer to provide documents during a deposition.  Don’t offer to have your spouse, co-workers, etc. send documents to you during the deposition.
6. Don’t Answer Questions Regarding a Document Until You’ve Read It
   • Always insist on reading any document presented to you in full before answering questions about it. This ensures that your testimony is accurate and informed.
7. Don’t Speculate About the Impact of Your Testimony
   • Never adjust your answers based on what you think might help or hurt your case. Your job is to tell the truth, not to strategize about the legal consequences.  The law is not always intuitive, and if you do not understand the technical components of your claims, you simply are not equipped to make those sorts of determinations while you are testifying.  The better strategy is to tell the truth.
8. Don’t Become Angry or Excited
   • Avoid showing anger or frustration during the deposition. This can lead to misstatements and can be used against you later. Stay composed and courteous, no matter the provocation.
9. Don’t Joke or Use Inappropriate Language
   • Humor can easily be misinterpreted in the context of a deposition. Avoid jokes, flippancy, and any language that could be seen as disrespectful or inappropriate.
10. Don’t Engage in Casual Conversations with Opposing Counsel
    • Keep your interactions with opposing counsel strictly professional. Even offhand remarks can be used against you, so avoid casual conversation entirely.  Matt avoids this by entering the deposition room right before the deposition begins and exiting immediately when the deposition is concluded – don’t hang out and chat with anyone – don’t chat with the court reporter, don’t chat with the videographer, don’t chat with opposing counsel, don’t chat with the employer’s representative, etc.
11. Don’t Equivocate When You Deny Something
    • Sometimes, in an effort to seem more credible, a witness will fail to clearly deny an allegation of misconduct because the witness will explain that he/she does not have a “perfect memory.”  For instance, if you are asked “Did you ever tell your boss that he was a stupid idiot?” don’t say “well, I cannot recall everything I’ve ever said to my boss, but I don’t think so.”  That answer sounds like “Yes!  I called my boss a stupid idiot.”
    • Instead, flatly deny allegations of misconduct clearly.  The best way to deny an allegation of misconduct, wrongdoing, or other malfeasance is like this:
      1. Deny the allegation directly:  No, I did not do that.
      2. Make a short explanation:  I always spoke to my boss respectfully.
      3. Finish the explanation with a second flat denial:  I never called my boss any derogatory names, and never called him a stupid idiot.
12. Never Affirm Your Own Honesty
    • People that are honest don’t need to tell others that they are speaking honestly.  Often times, a witness will improperly try to persuade the listener by using phrases like “Honestly, I never would have done that” or “I wouldn’t lie about something like that” or “I swear on my child’s life that….”  Those sorts of phrases only raise suspicion that you are not telling the truth and cause the opposing attorney to challenge your veracity.  The best strategy is to just tell the unvarnished truth.

By adhering to these do’s and don’ts, you’ll be better prepared to handle your employment lawsuit deposition effectively, ensuring that your testimony supports your case and maintains your credibility. Remember, your attorney is there to guide you through this process, so don’t hesitate to lean on that support as you prepare.

Contact the Ruggles Law Firm at 916-758-8058 to Evaluate Your Potential Employment Lawsuit

Matt Ruggles has a thorough understanding of California employment law and decades of practical experience litigating employment law claims in California and federal court.  Using all of his knowledge and experience, Matt and his team can quickly evaluate your potential claim and give you realistic advice on what you can expect if you sue your former employer.

Contact the Ruggles Law Firm at 916-758-8058 for a free, no obligation consultation.

Blog posts are not legal advice and are for information purposes only.  Contact the Ruggles Law Firm for consideration of your individual circumstances.