One of the favorite tactics of defense attorneys during taking plaintiff’s
deposition in a
wrongful termination case (and less so in a personal injury case) is to attempt to impeach or “corner”
the aggrieved employee on issues that are of marginal importance and don’t
really make a difference to the legal merits of the case itself. It typically
starts with reminding and employee that he/she was on “at-will”
status and could have been terminated for any reason or no reason. Then,
the deposing lawyer will point at minor inconsistencies in dates, times
and other information between your lawsuit, your DFEH/EEOC charge and
your responses to written discovery.
A poorly prepared witness will react emotionally, will get defensive and
might even get into an argument with the opposing counsel, in an attempt
to justify the discrepancies in an aggressive manner, coming across as
a hostile person. This can be very damaging to the case, especially if
the deposition is videotaped, as the defense counsel will later at least
try to get the most “dramatic” parts of the employee’s
deposition on a big screen for the jury’s viewing pleasure.
You must absolutely not allow the deposing attorney to get you out of your
emotional cool and balance. You must not react to any of the accusations.
You either concede that you might have done something wrong, if the issue
is not critical to your case, or you concede and then explain your answer
to justify your actions, if possible. For example, if the opposing lawyer
is stuffing a write-up in your face that says that you were 20 minutes
late for work on some random day and asks you whether it is your signature
on the write up and whether you were late, don’t let it intimidate
you. That “gun” that he is pointing at you is most likely
a harmless “water gun,” unless of course you were terminated
for excessive tardiness. It’s perfectly fine to agree that you were
late, and explain why you were late, if possible.
Today, for example, I was really proud to see how my client was acting
and answering questions at a deposition. The deposing attorney was very
good and very detail oriented. It was obvious to me that she did a very
good job digging as much dirty on my client as she could – from
traffic tickets and criminal and civil records, to her Facebook activity
and her volunteer work in the community. The lawyer spent the first 2
hours of the deposition nailing down the fact that my client knew about
certain policies and that he signed a memorandum of understanding of those
policies, namely – limitations on medical leave. My client was well
prepared for this attack. I explained to her well in advance that an employer
may not circumvent state and federal disability laws by creating its own
“blanket” polices on the same issues, so just because her
medical leave extended beyond the period allowed by the company, doesn’t
mean that she wasn’t entitled to more leave due to her disability
under Fair Employment and Housing Act, and thus she should not hesitate
to conceded that she was in fact absent for longer than the company’s
internal policies allow.
This is yet another example why preparation is such a crucial part of your
successful testimony as a plaintiff in your deposition. Most defense attorneys
consider plaintiff’s deposition to be the most important part of
the case. The longer I practice and more I realize how true it is.
If you are plaintiff in a wrongful termination action, it is crucial that your
employment attorney prepares you thoroughly for your deposition testimony and makes you feel
confident about what you are going to say, and how you are going to handle
the difficult questions that will surely come your way.