Introduction
A deposition is an integral part of almost all lawsuits, but is particularly important in employment lawsuits alleging claims for harassment, discrimination, retaliation or wrongful termination of employment. For plaintiffs (usually the former employee filing the lawsuit), understanding what to expect during an employment lawsuit deposition and how to prepare is crucial. Below, we answer common questions to help you better under the employment lawsuit deposition process and what to expect.
What Is an Employment Lawsuit Deposition?
An employment lawsuit deposition is a formal interview conducted under “the oath to tell the truth under penalty of perjury” by the defense lawyer hired by your former employer. Although most depositions are taken in person in a conference room, it is quite common since the Covid pandemic to conduct depositions remotely through videoconferencing like Zoom or Microsoft Teams.
The employment lawsuit deposition always is recorded by a court reporter (stenographer) who records everything that is said during the deposition by the participants, which then becomes the official transcript of the deposition. The deposition also may be recorded by videotape if the opposing party tells you it will be recorded by videotape beforehand. When you answer questions at a deposition, your answers are part of your official testimony in the lawsuit.
Why Are Depositions Necessary in My Employment Case?
Generally speaking, there are three stages to a lawsuit:
- filing the lawsuit (the “pleading stage”)
- the discovery stage (exchanging documents/information and conducting depositions)
- trial
Of those three stages, nearly all of the time in a lawsuit is spent in the “discovery” stage of the lawsuit during which the parties exchange documents and information, subpoena information and documents from third parties (non-participants in the lawsuit), and conduct depositions.
When most people think about being involved in a lawsuit, they think about the discovery stage because discovery typically takes anywhere from 12 to 36 months to complete. Ordinarily, the most significant aspect of the discovery stage of an employment lawsuit for harassment, discrimination, retaliation or wrongful termination is conducting depositions of the relevant witnesses to the lawsuit.
In an employment lawsuit, the most important witness is the plaintiff-employee – the person that filed the lawsuit because the plaintiff-employee contends he/she was the victim of harassment, discrimination, retaliation, etc. Likewise, the company’s witnesses, such as the manager, supervisor, and Human Resources representative that made the decision to terminate the employee-plaintiff also are important witnesses.
Employment lawsuit depositions allow each side’s attorney to question the opposing party’s witnesses to gather relevant information and gain insight into the opposing party’s arguments, legal contentions, and defenses. When the employer’s attorney takes the plaintiff-employee’s deposition, the defense attorney has two main goals in the deposition: 1) gather information about the claims and “lock down” the plaintiff-employee to a particular set of facts about the case so that the claims do not expand as the lawsuit progresses; and 2) to “test” the plaintiff-employee’s allegations by posing questions that challenge the allegations in the lawsuit in an effort to gain adverse admissions from the plaintiff-employee that will help the employer-defendant get the case dismissed.
Case Example of Employment Lawsuit Deposition
In a typical discrimination lawsuit, the plaintiff will allege that he was the victim of discrimination because of his protected characteristic – let’s say his race. At the deposition, the defense lawyer will question the plaintiff-employee to learn every single fact that the plaintiff-employee can recall that supports the allegation of race discrimination, including naming everyone that ever mentioned the plaintiff’s race and every derogatory comment or slur made about the person’s race, etc.
Once that information is obtained, the defense lawyer will then attempt to get the plaintiff-employee to admit that the plaintiff-employee does not have any genuine information about why the adverse employment action was taken, and that the accusation of race discrimination is based only upon speculation and conjecture. The defense lawyer also will confront the employee-plaintiff with any facts that might show inconsistencies in the plaintiff-employee’s allegations in an attempt to show the plaintiff-employee is lying which of course will adversely affect their credibility.
Will I Be Deposed if I File an Employment Lawsuit?
The plaintiff-employee is almost always subject to a deposition in an employment lawsuit. In fact, most defense attorneys insist that the plaintiff-employee’s deposition is the very first deposition in the lawsuit because the defense lawyers want to “lock down” the plaintiff’s story before any of the employer’s witnesses are deposed. The employer’s witnesses also can be deposed, as well as anyone else relevant to the facts of the lawsuit, including any treating healthcare providers, third-party witnesses, former employees of the employer, etc.
How Is a Deposition Different from Other Forms of Testimony, Such as in Court?
In most employment lawsuits, a witness can only be required to testify under oath on two different occasions: at a deposition, and at trial. There are two major distinctions between deposition testimony and testimony at trial:
1) Location: an employment lawsuit deposition normally takes place in a lawyer’s conference room and no judge is present; trial testimony always takes place in court before a judge; and
2) Scope of Questioning: at an employment lawsuit deposition, the attorney conducting the deposition can ask about anything that is relevant to the lawsuit or anything “that might lead to the discovery of admissible evidence,” which basically means almost anything; at trial, the judge typically will only allow questioning that is directly relevant to the claims or defenses in the lawsuit, which is a very narrow standard.
When and Where Do Employment Lawsuit Depositions Typically Take Place?
Depositions usually occur at the office of the attorney who requested the deposition. If you are the plaintiff, your deposition will likely take place at the defendant’s lawyer’s office. Sessions typically start at 10:00 a.m. and can last until 5:00 p.m. Under California law, depositions in employment cases are not subject to any time limitation, but it is unusual for a deposition to last more than 7-8 hours of “on the record” testimony. In federal court, depositions are limited to “one day of 7 hours.”
Keep in mind that “seven hours” of deposition testimony actually requires about 10 hours of time, just like a 1-hour football game requires 3 hours to complete because of breaks, time outs, etc. The same thing happens in most depositions.
Can I Have My Attorney Present During My Deposition?
Yes, your attorney will be present during the entire deposition. Your attorney should be sitting right next to you during the deposition. During the deposition, your attorney is entitled to object to improper questions, and also is entitled to counsel you during breaks. However, direct communication between the witness and the witness’s attorney during the deposition is not allowed (your attorney cannot tell you what to say in response to a question, cannot pass you notes on what to say, etc.).
What Types of Questions Can Be Asked During an Employment Lawsuit Deposition?
The answer is that an attorney can ask a witness almost anything during a deposition. The legal standard is very broad, and permits the attorney to ask about any topic that is “relevant to the subject matter of the lawsuit or that might lead to the discovery of admissible evidence.” The only exception are things that are considered private and confidential, like unrelated medical conditions, communications with your attorney, spouse, healthcare provider (on unrelated matters), etc.
How Can I Prepare for My Own Deposition as the Plaintiff?
Preparation for your employment lawsuit deposition is essential. Reviewing all of the relevant documents is a must, including reviewing the complaint (the lawsuit), your DFEH/CRD administrative complaint, your discovery responses, the defendant-employer’s discovery responses, and any documents that have been produced either by your attorney or by the defendant-employer’s attorney.
It is also very important that you spend at least several hours with your own attorney to discuss the process so you are comfortable with how the deposition will proceed, what to expect, and how to answer questions. Your attorney should explain when you can respond with “I do not recall,” when you should answer by referring to documents, when you should refuse to answer, when you should ask for a break, what to do when you hear objections, how to deal with an angry attorney, how to dress for the deposition, how to correct your testimony if your memory is refreshed during the deposition, as well as many other tips that will aid in successful completion of your deposition.
Can a Deposition Be Used as Evidence in Court During the Trial Phase?
Yes. Under California law, a party’s deposition can be used for any purpose. This means your deposition may be read aloud at trial, or if videotaped, it can be played for the jury without further explanation. One of the most important aspects of the deposition process that most people do not recognize is that while what you say is very important, how you say it can be even more important. The very first question that most defendant-employer’s ask their attorney following a plaintiff’s deposition is not “what did he say;” instead, they always ask “how did they do as a witness?” The defendant-employer is most concerned with how good of a witness you make for yourself – are you honest? Are you believable? Do you exaggerate? Are your emotions appropriate for the situation? An honest, straightforward witness with mediocre facts will almost always do better in a lawsuit compared to a pompous and disagreeable witness with very good facts.
How Long Does a Typical Deposition in an Employment Lawsuit Last?
Unless the opposing attorney tells you that the deposition will be a “half day” (4 hours), you should always assume that your deposition will last the entire day – from 10:00 a.m. to approximately 5:00 p.m. It is very uncommon for a plaintiff-employee’s deposition to take less than an entire day.
Can Depositions Help in Settling the Case Before Trial?
Yes. Depositions often provide insight into the strength of the case, which can lead to settlement discussions before trial. They are a critical tool for both trial preparation and settlement evaluation. Many cases can be resolved (settled) after completion of the most important depositions.
Conclusion
Employment lawsuit depositions play a critical role in the litigation process, offering both sides an opportunity to gather vital information and evaluate the strength of the case. As the plaintiff, being well-prepared for your deposition is essential to ensure you present your case effectively. With the support of your attorney and a thorough understanding of the deposition process, you can navigate this key stage of the lawsuit with confidence. Whether the deposition leads to a settlement or proceeds to trial, how you conduct yourself during the deposition can significantly influence the outcome of your case.
Contact the Ruggles Law Firm at 916-758-8058 to Evaluate Your Potential Lawsuit
Matt Ruggles has a thorough understanding of California employment laws 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.
The fight for employee rights is an ongoing battle that requires vigilance, knowledge, and the unwavering commitment of both employees and employers. California, with its robust legal framework, stands at the forefront of protecting workers’ rights and promoting diversity and inclusion in the workplace.
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.
