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

 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.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 Personal emails at work are sometimes protected from intrusion and sometimes not.  The email system belongs top the employer.  One indicator that work generated emails may be protected occurs when the employer allows some personal use of email.  See the case discussed at one blog post.  But, see another case discussed at a different blog in which the employee's emails were found not to be protected from review by the employer.  The biggest difference in the two cases is that in the first case, the employer did allow some personal use of the employer's email system.  That court found that yes, the employee had a reasonable expectation of privacy in such a situation.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 Employers, if they are doing their job, should counsel an employee in writing for a serious offense.  Part of that counseling is the need to verify that the employee has received the written warning and understands it.  That is why the employer will ask the employee to sign the disciplinary warning.  Signing does *not* mean you agree with it.  It only means you have received the warning.  

A very helpful website, www.canmybossdothat, explains this and more.  

When you do get a written warning, if you can, you want to add a brief sentence or two about your side of the story.  Add your story and then sign it.  Ask for a copy of the write-up if a copy is not offered. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 "Do unto others as you would have others do unto you"  The famous words known as the golden rule.  Its a Christian precept designed to encourage us to treat others as we would like to be treated.  Unfortunately, in the work place, we must sometimes treat others as we must in order to survive, or so we think.  "Niceness" does count in lawsuits.  Extending basic courtesy, or making a generous gesture make a difference in a lawsuit.  

You, as an employee, may be locked in a huge fight, or simply engaged in an ongoing tit-for-tat with your employer.  The struggle may last months or years.  But, everything you do will become magnified if your dispute becomes a lawsuit.  A judge or jury will look at what you did and draw critical conclusions about you as a person.  The judge understands the law, but s/he sees so many lawsuits that personal differences alone may make you stand apart from the horde of losing employees.  A jury, on the other hand, may understand little of the law in a discrimination case.  But, they will well understand an employee "smarting off" to a manager or refusing to perform some task at work.  

The simple things have a way of crystalizing a case for a jury.  It is in your interest to do the right thing,  Because, if you do not,  it can cost you an otherwise winable case.  

That is partly why a leading defense lawyer warns employers to follow the golden rule.  

The more difficult the issues become, the more nasty your dispute may become, the more important it is to follow the golden rule.  Do the right thing.  You will live better and you will have a better chance of winning. 

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link