San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

I have talked about this before, but it needs repeating.  See my prior post.  The plaintiff employee deposition is critical to success for any employment lawsuit.  The plaintiff employee must be able to show the opposing attorney and the employer that the employee can testify, can present well to a jury and can tell a coherent story.  

The employee has to get past some of the pain.  S/he must be able to testify without breaking down.  Too many tears will impede a story.  A clever defense lawyer will test the employee in many different ways.  Most defense lawyers do not seek confrontation.  But, they do seek evidence or answers they can use against the plaintiff employee.  Some of the defense questions will call on the employee to show some objectivity.  The employee who cannot step back a bit from the emotions of his/her case will suffer. 

For example, many defense lawyers will ask the employee what errors s/he committed.  The employe who cannot admit errors will betray weakness the defense lawyer can exploit at trial.  The employee who admits to no errors may appear to be dishonest.  The employee who admits to too many errors may undercut his entire case. 

Many defense lawyers will ask the employee to list "all" instances of discrimination.  Failure to include everything could result in the court dismissing claims based on that one omitted incident. 

The plaintiff employee deposition will go as long as several hours and as short as a couple of hours.  It is emotionally draining for every employee.  It can get intense.  The plaintiff employee must re-live the very horrible experience of losing a job through no fault of his or hers.  I have had many clients cry either during the deposition itself or during a break.  

Some clients do not hold up well over a lengthy deposition.  Some plaintiff employees suffer from health or other issues that cause them to be easily lead by opposing counsel.  One former client admitted to opposing counsel that he complained about discrimination on Tuesday, even though he and I both knew it was Monday.  if it was Monday, then he had a good retaliation claim.  If it was Tuesday, then he had no retaliation claim.  Why would he say Tuesday?  I may never know, other than he was simply easily lead on cross-examination.  

Another "catch-22" is that nice is important,  Any witness risks offending the jury if the witness is too rude or pushy.  Niceness does count.  But, if the witness or plaintiff employee do not "fight" for their position in a deposition, then they risk the opposing lawyer defining their story.  The plaintiff employee must be "nice" to some degree, but s/he also needs to fight for her answer, sometimes. 

Some plaintiff employees fret over dates.  They think they must recall the exact date of significant events that occurred years before.  Few witnesses recall specific dates.  But, most people do recall events in relation to some other event.  For example, most people will recall that they requested an accommodation "just before Christmas" or "just after Easter."  Yes, witnesses, especially plaintiff witnesses should recall events that lead to termination.  But, that does not mean the witness must recall the specific date for each termination event. 

Cross examination is all about one word answers.  Opposing counsel generally want the plaintiff employee to answer yes or no.  But, some questions require explanation.  The plaintiff employee must fight for his/her answer, sometimes.  For example,  "Isn't it true you never called in when you were sick?"  "Yes," answers the employee.

But, "yes" does not explain the situation.  The better answer is, "Yes, but the employer did not require employees to call in if they were ill more than one day.  We did not have to call in everyday if we were out more than one day."    The first answer suggests the employee is admitting s/he erred in not calling in.  But, the second answer explains just the opposite, that the employee satisfied the requirements as they were understood.  

The explanation fills in a big gap regarding why the employee did not call in.  Without the explanation for why he did not call in, the employer can use that information to seek dismissal of the plaintiff's claims. 

So, yes, the plaintiff employee deposition is very important.  

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 A similar question arises in all my employment cases.  In a recent case, the defense lawyer was deposing a witness who supported my client.  He asked why she thought the manager's remark was discriminatory.  Upon hearing that swine flu was predominant in the Rio Grande Valley, the manager had remarked, "Well, what do you expect from the Valley."  The witness recounted that comment as one of 3 or 4 discriminatory remarks made by the manager.  

This one may or may not show Hispanic bias.  But, the witness (Caucasian) believed it did.  The defense attorney then went down a line of questioning he would regret.  He wanted to challenge her perception.  The defense lawyer was new to South Texas.  He had moved here from a Northern state.  

Defense attorney: "Why do you think that comment refers to Hispanics?"  Witness: "Because everyone knows the Valley is mostly Hispanic."  "Are you Hispanic?"  Witness: "No, but I have several Hispanic relatives in the Valley and go there often."  Attorney: "Have you seen a census report for the Valley?"  ....  long pause.  The witness turns to face the defense lawyer squarely.  "I am from Cotulla.  I do not have to see a census report to know that Cotulla is predominantly Hispanic."  The defense lawyer then wisely dropped this line of questions. 

It is a common line of questions - the defense lawyer tries to challenge a perception of discrimination.  But, a perception, any perception belongs to the witness alone.  It is by definition subjective.  It is ultimately up to the jury to assess the validity of the subjective perception.  The jury decides the relevance of the remarks and whether one remark or all remarks display some bias.  

Some minority clients have actually backtracked or apologized for their perception.  They should not.  Minorities notice things that majority members of a group do not notice.  Body language, facial expressions are facts.  Observations are facts.  Ultimately, it is up to the jury to agree or disagree that certain body language or particular jokes amount to bias.  The beauty (and weakness) of the jury system is that the juries reflect common beliefs, good or bad. 

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In every employment lawsuit, depositions are taken.  A court reporter transcribes the testimony and sends the transcript to the witness for review.  Under federal rules, the witness has 30 days to review and submit any changes.  The changes are supposed to reflect changes to what was asked or answered, not changes to actual substance.  Changes generally address typos, not substance. 

Clients ask me all the time how many corrections can they make to their deposition.  In an employment case, the deposition of the alleged victim is critical.  The employee must be able testify to the discrimination.  So, any changes to the deposition transcript are important.  What if the employee finds her deposition answers are not quite right?  I have never had that problem.  In my experience, the issue has always been typos or perhaps, somewhat incomplete explanations.  

Well, in Norelus v. Denny's, No. 94-02680-CV (S.D. Fla.), the plaintiff employee made 868 changes to her deposition transcript.  A junior associate even helped write explanations for the changes (e.g., "recollection refreshed").  What happened afterwards is subject to dispute, but is the subject of an 11th Circuit deision in which the appellate court sanctioned the plaintiff's law firm almost $400,000.  See No. 07-14077 (11th Cir. 12/28/10).  

The plaintiff was a Haitian immigrant.  She worked at a Denny's in Miami and alleged she was sexually harassed constantly and raped by two managers.   Her deposition lasted eight days, which is very unusual.  She reviewed her deposition, as most plaintiff employees do, and made 868 changes, which is also very rare. I think the most changes any of my clients have ever made was some 20 to 30 changes. 

According to the dissent, the plaintiff lawyer then sent the errata sheet with 868 changes to the defense attorney, not to the court reporter.  In testimony later, Karen Amlong, the plaintiff's lawyer, said she wanted the truth to be know about the client's testimony.  

As the dissent explains, this is an important distinction.  If Ms. Amlong wanted the errata sheet to be made part of the deposition, then it had to be sent to the court reporter.  Not doing that, it appears the plaintiff lawyer had other goals in mind.  The dissent believes she felt ethically bound to reveal possible perjury by her client.  The nature of the changes (changing no answers to yes; providing details she could not previously recall during the deposition a few weeks prior) does suggest the client lied in her deposition, in the changes or both.  So, some lawyers would believe they have a duty to reveal those apparent lies.  The ethical rules are not clear.  The dissent believes Karen Amlong deliberately, if indirectly, revealed those lies to the defense attorney. 

At this point in the lawsuit, the defense lawyer moved for sanctions.  He implied, without directly stating it, that Ms. Amlong submitted the 868 changes to the court reporter.  Thus began some $378,738 in attorney's fees by the defense.  That is the amount of the court's sanction.  So, as the dissent explains, the defense lawyer could have avoided the $378,738 if they had been more honest. 

The 11th Circuit decision is curious.  The majority opinion takes some nasty swipes at the dissent.  A second judge concurred in everything but the part that attacks the dissent.  It takes two judges to reach a ruling.  So, essentially, the "majority" decision includes one and one-half judges. 

The majority opinion discusses the Amlongs' actions constantly throughout a very lengthy decision.  But, so far as I can tell, the majority decision never mentions the name of the defense attorney who also appears to have committed errors.  The majority decision is some 74 pages long. 

The "errata sheet" was submitted just before trial.  The trial judge, upon being informed of all the changes, ordered a third deposition of the employee at the employee's expense.  The plaintiff testified poorly, unable to recall certain facts.  The plaintiff bcame sarcastic with the defense attorney, who then stopped the deposition.  

The plaintiff refused to pay the costs of the third deposition and the judge dismissed the case.  The resulting litigation has been all about these defense lawyers trying to recoup their attorney fees.  

It is curious to me that the plaintiff's lawyer stayed with the client even after the 868 changes.  To me, those changes, some completely different from her deposition testimony, appear to indicate perjury. Some lawyers would have withdrawn from such a case once perjury became apparent.  I am told that few lawyers go to the trouble of representing Haitian immigrants.  Translation of the Creole dialect is very difficult. 

The Amlongs are well-known attorneys.  They previously represented Ms. Faragher in the well-known Faragher v. City of Boca Raton decision.  That was a US Supreme Court decision that cleared up confusing law regarding sexual harassment cases.  That case required some hutzpah, since the state of sexual harassment law prior to the Faragher decision was very confused. 

The dissent makes more sense to me.  If the lawyer sent the errata sheet to the defense attorney, and not to the court reporter, then clearly the plaintiff's lawyer was trying to alert the defense to her client's apparent perjury.  That is no small step for any lawyer to take, possibly exposing Ms. Amlong to a complaint by her own client.  I am sure Ms. Amlong felt considerable angst when she sent that list of 868 changes to the defense attorney. 

The sanction, $378,738, is huge for a small, mom and pop law firm.  I am sure the plaintiff's law firm will seek en banc consideration.  En banc review means they will ask the entire 11th Circuit to hear their case.  This deicision issued Dec. 28, was issued by a three judge panel.  The 11th Circuit has some ten other judges.  They might view the case differently. 

Clients and witnesses do not need to recall every detail of every event.  They do need to recall enough facts to be credible.  If they make wholesale changes to a deposition, then that does suggest perjury somewhere.  The young associate who actually provided legal terminology ('recollection refreshed") to support some changes made things worse for the Amlongs.  

The purpose of reviewing a deposition is not to ensure the transcript accurately reflects reality.  The purpose of reviewing a deposition transcript is to ensure the transcript accurately reflects the reality as it was conveyed in that deposition on that one day.

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 I spoke about depositions in general a couple of weeks ago.  Now, let's talk about employee depositions in a San Antonio employment lawsuit.  The plaintiff employee deposition is critical to success for any employment lawsuit.  The plaintiff employee must be able to show the opposing attorney and the employer that the employee can testify, can present well to a jury and tell a coherent story.  It is not as easy as it sounds.

The employee has to get past some of the pain, enough to testify without breaking down.  Too many tears will impede a story.  And, as Mike Maslanka shows in a recent post, the plaintiff employee must be able to look at his/her case with enough objectivity to admit possible error on his/her part.  Mike mentions one if his favorite questions to ask (in a deposition, I am sure) "what errors on your part helped lead up to the termination?"  No one is perfect, so if you answer, "none," you risk appearing dishonest.  If you admit to too many mistakes, or to some very significant mistakes, then you risk losing your entire case.  

The plaintiff employee deposition will go as long as several hours and as short as a couple of hours.  It is emotionally draining for every client I have had.  It can get intense.  The plaintiff employee must re-live the very horrible experience of losing a job through no fault of his or hers.  I have had many clients cry either during the deposition itself or during a break.  

Some clients do not hold up, at all.  Some plaintiff employees are suffering from various issues that cause them to be easily lead by opposing counsel.  One former client admitted to opposing counsel that he complained about discrimination on Tuesday, even though he and I both knew it was Monday.  if it was Monday, then he had a good retaliation claim.  If it was Tuesday, then he had no retaliation claim.  Why would he say Tuesday?  I may never know, other than he was simply easily lead on cross-examination.  

Employers will often ask the same question two or three times.  The same question.  But, it is an important question.  "State all facts on which you believe you were the victim of discrimination."  If the plaintiff employee omits one or two key facts, then s/he may lose the right to allege those key facts in the lawsuit.  

Another "catch-22" is that nice is important,  Any witness risks offending the jury if the witness is too rude or pushy.  Niceness does count.  But, if the witness or plaintiff employee do not "fight" for their position in a deposition, then they risk the opposing lawyer defining their story.  The plaintiff employee must be "nice" to some degree, but s/he also needs to fight for her answer, sometimes. 

Cross examination is all about one word answers.  Opposing counsel wants the plaintiff employee to answer yes or no.  But, some questions require explanation.  "Isn't it true you never called in when you were sick?'  Yes, but.....  "Yes, but the employer did not require employees to call in if they were ill more than one day.  We did not have to call in everyday if we were out more than one day."    The explanation fills in a huge gap about why the employee did not call in.  At some point, the employee plaintiff must provide this key fact.  The risk is that in not providing a key fact, the plaintiff lawyer may not be able to use that key fact when the judge decides summary (ie, quick) judgment.  

So, yes, the plaintiff employee deposition is very important.  

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When President Clinton was still President and he was getting into some trouble about having lied in a deposition regarding alleged sex harassment, a former client called me.  He was upset.  He said Pres. Clinton is getting into so much trouble for lying in his deposition, but so-and-so manager lied in his deposition and did not get into any trouble.  Former client's case had been race discrimination, but I understood his point.  If the President supervisor gets into trouble, why didn't former client's supervisor get into trouble for lying in former client's case?  

I had to explain to that managers and supervisors lie or stretch the truth in most depositions.  They never admit to discriminatory acts or statements.  And, prosecutors are too busy with more important crimes than to pursue perjury in civil cases (ie, non-criminal cases). 

You see what happens when the Houston district attorney's office "coaches" a witness.  Witness "coaching" often walks a fine line between outright lying and simple education regarding what a witness can do or not do.  These attorneys got caught.  This all stems from a sex harassment case against the former Harris County District Attorney, Ibarra v. Harris County.  

Most defense attorneys do not even come close to getting caught.  Most defense attorneys are very honorable, responsible officers of the court.  But, a few are not (not unlike a few plaintiff attorneys).  This is a fact of litigation.  There is no "ah-ha" moment when a racist manager admits to his/her mis-deeds.  Not in real life.....

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