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

 In employment cases, the employer will always depose the plaintiff employee.  The defense lawyer will ask a wide variety of questions, not necessarily directly related to whether discrimination occurred or not.  They may ask for driver's license numbers, acquaintances at work, out of work.  In one disability case, the defense lawyer even asked a few questions of my client regarding her love life.  I don't know.  Depositions are a discovery device.  So, any question that relates reasonably to potentially admissible evidence is fair game.  

Lately, many defense lawyers are asking questions regarding the social security number of an employee.  The SSN is a pretty good tool for searching public data bases.  I am sure they also hope to add to the employee's apprehension about the lawsuit process.  If the employee is Hispanic, then apprehension will increase substantially.  if the Hispanic client is here illegally, then he/she will not have a valid SSN.  Many defense lawyers know that.  Mike Maslanka discusses a case where that issue was raised in a deposition.  See Mike's blog post. 

The defense lawyer had the SSN from when the employee, Bella Viveros applied for the job.  But, the defense started asking questions regarding the validity of her SSN.  The employee's lawyer told her to not answer those questions.  The employee's lawyer then sought a protective order, a ruling from the trial judge that the employee did not have to answer such questions.  The trial judge granted the protective order.  The defense then moved for a mandamus, a ruling by an appellate court to force the trial judge to change its ruling. 

On appeal to the Fourth Court of Appeals in San Antonio, the court ruled for the defense lawyer. See decision in In Re K.L. & J. Limited Partnership.  

The court found that the defense lawyer should have an opportunity to ask questions regarding the validity of the SSN and toi make sure she is truly who she says she is - supposedly to determine whether she has made similar (employment) claims in the past or has criminal history.  The employer says they could not locate the employee's name in any national data base of SSN holders. So, they should have the opportunity to examine the validfity of her SSN.  The court of appeals did find that the employer could not ask questions regarding the employee's citizenship. 

As Mike Maslanka adds, this is an area of hot debate.  I am sure there will be more caselaw and more disputes regarding this issue.  At first blush, it seems this should be a non-issue.  If the employer had concerns about citizenship, then it should not have hired the employee in the first place.  But, it is true that if an employer learns of details later that would have caused concern at the time of hiring, then that new information could undermine the employee's claim for lost pay.  But, this could all lead to questions regarding what the employer knew and when did it know it.  In the end, questions regarding citizenship and SSN's could cause more trouble for the employer than they are worth. 

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Another example of lawyers behaving badly at depositions.  A Florida lawyer, Robert J. Ratiner was sanctioned for his conduct at a deposition.  See ABA Journal report.  His latest sanction is that he cannot attend a deposition alone for the next two years unless the deposition is video taped.  As reminder, depositions is the event in which lawyers for both sides to a civil lawsuit can question a particular witness.  There is no judge.  Only the lawyers, the parties to the lawsuit, one witness and a court reporter attend.  The court reporter records the testimony.  Often, egos, tempers and emotions are also present.  

At his latest infraction in 2007, Mr. Ratiner lost control when the opposing counsel attempted to put an exhibit sticker on Mr. Ratiner's laptop.  The opposing counsel was apparently trying to turn Mr. Ratiner's laptop into a deposition exhibit.  Mr. Ratiner briefly touched the opposing counsel's hand and then attempted to run around the table toward the opposing counsel.   According to a referree who investigated the incident, Mr. Ratiner then tore up the exhibit sticker (typically about 2" by 2") tossed the little pieces toward the opposing counsel.  He leaned in toward the opposing counsel and berated him.  Mr. Ratiner's own consultant told him to take a Xanax.  The court reporter exclaimed that she could not "work like this."  

The Florida Supreme Court described Mr. Ratiner's conduct as an embarrassment to all members of the Florida bar.   As I have mentioned before, extreme conduct like this is very rare in my experience.  But, lawyers do behave badly at depositions.  Not too long ago, I had to fuss a bit at one lawyer for attempting to provoke my client unnecessarily.  There is no jury and no judge at a deposition.  The things that force us to behave are not present.  

Like doctors, we lawyers also say "first do no harm" to your client.  It does sound like Mr. Ratiner overlooked this maxim and did substantial harm to his client's case with his outburst. 

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 My friend Gene Lee wrote a good post about how long discrimination lawsuits can take.  He refers to statistics showing that from start to finish, the average lawsuit will take 22 months.  That sounds about right for the San Antonio area, also.  Here in South Texas, we can file the typical discrimination lawsuit in state or federal court.  The length of litigation time is about the same for either venue. 

As Gene explains, the discovery process will take months, sometimes years.  In employment cases more than other cases, the relevant "evidence" is mostly in the hands of the employer.  So, as one might expect, employers resist providing evidence whenever possible.  "Discovery" is the process we use to obtain relevant evidence.  Discovery includes written questions and requests for documents.  It also includes depositions.  Discovery is often the heart of the case for both sides in an employment suit. 

Depositions are the biggest cost in any lawsuit.  Gene Lee also put together a nice post about the costs of a lawsuit.  As Gene explains, you do not have to depose every critical witness, but it sure helps to depose anyone and everyone.  

And, of course, as Gene explains in both posts, after everything is done and you win, the employer side will almost always appeal in an employment case.  Employers fare very well in appellate court.  So, they have strong incentive to contest any jury wins.  The appeal itself here in South Texas will require another 1-2 years to complete.  If one must appeal to the Texas Supreme Court, that would take significantly longer.  I recently saw an article about a party who actually sued the Texas Supreme Court because they had heard his appeal four years ago and still had not issued a ruling.  Ouch!

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 We do this thing in litigation we call "depositions."  One side can ask questions of a key witness.  The testimony is recorded by a court reporter.  Depositions can be very dull.  They an also be very tense.  After all, if the parties got along, there would be no lawsuit.  Every client I have ever had was very stressed at being deposed for hours about their story.  Male and female clients have cried at various times during their depositions.   The atmosphere can become very tense.  So, when I see the following video clip, I am not surprised:  link.  This is an extreme deposition.  But, I am sure a good deal of stress preceded this deposition.  There are no judges present at a deposition.  But, as lawyers, we are supposed to carry on the deposition as if the testimony was being provided in court.  

This second video clip is more typical of depositions:  link.  The key in any deposition is to simply always be sure to tell the truth and never guess.  Some plaintiff employees feel the need to answer every question, even if the answer is a guess.  Do not guess.  There is no requirement that a witness remember every fact.  In fact, most witnesses do not recall every detail about a particular event.  Some witnesses feel the need to recall every date.  But, again, there is no requirement for a witness to recall every detail.  

In the world of litigation, "niceness" does count.  See this video clip in which a witness is supposedly tough in responding to a particular question.  The witness probably enjoyed some momentary satisfaction in expressing himself.  But, if that clip was shown to a jury, the jury would be far less impressed with his answer.  Juries do not appreciate "tit for tat."  On the contrary, juries respond to professional disagreement.  Everything a plaintiff or defendant do in a lawsuit is recorded and saved.  Every party needs to be sure they do nothing that could cost you a vote or two with the jury.  

Many clients press me to respond tit for tat when the other side takes a cheap shot of engages in unprofessional behavior.  We must resist the temptation to give in to our inner "Mongo."  As a well known litigation commentator, James McElhaney,  says, "Mongo not like.  Mongo want revenge!"  Mongo may gain brief satisfaction.  But, Mongo will probably lose the trial.  

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