Preparing for a deposition in an employment case can be a tough and fact-intensive process. As much as any kind of litigation, employment disputes (like harassment, discrimination, and retaliation claims) often are hyper-focused on all manner of specifics (like work performance, job descriptions, interoffice communication, etc.). For example, in a sexual harassment or retaliation case, witnesses may be asked tricky and detailed questions related to consent, interoffice relationships, or whether certain contact was “welcomed” by the alleged harassment victim. You would not want to be struggling to identify when an in-office romantic relationship began, like this guy:
You don’t want to be calling out for a “line” (like in a play) or forced into “throwing yourself at the mercy of the deposition.” An employment attorney can help you prepare, starting with basic items (like how to request a bathroom break) and:
- A description of the physical setting for the deposition and who will be there. Is it possible that the person from the office that you don’t get along with will be in the room? As you saw in the clip, there will almost always be a court reporter present, who can read back what has already been said “on the record.” While not common, there may even be a court official at the head of the table, overseeing the process.
- An explanation for how the testimony will be recorded and used. Is there a camera or microphone in the room? Many times, the court reporter is just creating a written transcript of what is being said. But you’ll want to know if you’re going to be on camera.
- The rationale for why you are being deposed in the first place. What categories of information or legal issues justify this particular deposition?
- A review of the pleadings and written discovery responses from both sides
Further, good witness preparation should include the following guidance:
- Be mindful of your physical appearance and demeanor. A witness makes an impression during a deposition, which affects how all sides evaluate the case.
- Read every document (or evaluate every picture) you are given carefully. Do not answer questions about a document unless you are sure you know exactly what it says.
- Engage in “active listening” – listen to every part of the question you are asked, pause, consider your answer, be sure the answer accurately responds to the question, then provide the answer to the question.
- Do not provide anything more than the answer to the question. A deposition is never a good time for a stream-of-consciousness discussion or friendly conversation.
- Answering with, “I don’t remember” is fine, as long as it’s the truth (see below).
- Be wary of three things: (1) pushy efforts to get you to answer “yes or no” questions (the truth may be more nuanced than that); (2) “catch-all” questions like “anything else about that?” or “is that all you can remember about this?”, and (3) “absolute” words – like “never” and “always.” Your lawyer can explain to you the specific reasons those items are dangerous in your particular deposition.
- Lastly – and most importantly – always, always, always tell the truth. You shouldn’t call out for a “line” (like in a play)! Good lawyers can navigate their cases around difficult or negative facts. But it is impossible to fix a dishonest or unreliable witness.
Also, keep in mind that, in Ohio, lawyers for both sides of a case (employee and employer) can contact witnesses to get information – including current and former employees. There are ethical rules for such contact, however, and witnesses are always entitled to have their own lawyers provide guidance for how to handle a deposition.
Lastly, what if you receive a subpoena for a deposition, but you have already signed a severance agreement or other contract with your employer that says you can’t “participate” in a lawsuit against it? Generally speaking, an employer cannot privately bind an employee to ignore a deposition subpoena (or any other kind of subpoena!). In this case, for example, we fought and secured an Order from a court overriding a “non-participation” clause in a severance agreement so that a witness could provide testimony that was helpful for our client. When in doubt, revert to the guidance above – talk to a lawyer!
To seek counsel from our Employment group, please reach out to request a consultation or call us at 216-696-1422.
