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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My colleague and friend, Mike Maslanka, at Work Matters, pens a nice post about questions to pose to the employee plaintiff.  See post.  Mike's post discusses good questions to ask the plaintiff.  Mike generally represents employers.  These questions would usually come during the deposition or the trial.  His point is that the better questions for the employer to ask are not "home run" type questions, but the doubles and triples.  "is this a fair summary?"  As Mike points out, this question, often in a deposition, is not all that fair.  The question often is slanted just a bit to favor the employer.  The goal is to elicit testimony the employer can use to seek dismissal of the case or summary judgment. 

 "Take it to the limit one more time."  Mike makes a valuable point here.  He means the employer's lawyer should look for ways to press the issue regarding personality conflicts.  If he can show the employee was fired due to personality issues, then that undercuts discrimination or some other illegal motive playing a role.  And, he hopes to show that the employee is unreasonable. 

The plaintiff employee who cannot set aside his/her anger will surely lose. The employee needs to show some appreciation for the opposing point of view.   "Niceness" does count in litigation.  Ultimately, we all answer to a judge and jury for everything we do in a lawsuit.  An employe (or employer) who comes across as unforgiving or unreasonable will lose.  The jury does not understand the law very well, but they tend to understand human nature very well.  They do not sympathize with plaintiffs who cannot get past the emotional pain. 

Its a fine line the plaintiff employee must walk.  S/he must be firm, but not cross.  S/he must be "nice" but not easily pushed around during questioning.  It is a difficult task.  But, the employee who cannot set aside anger to some degree loses credibility. 

Its a truism that applies elsewhere.  In my time in the Army, some  28 years in the Army, Army Reserve and National Guard, personnel issues occurred with some frequency.  "He said, she said" disputes were not unheard of.  If one side could discuss the issues with some balance, that soldier gained credibility.  Litigation is no different.......

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Alex Colvin of Cornell University has published one of the first empirical studies of arbitration in the employment context.  He looked at the reports submitted by the American Arbitration Association, one of the leading providers of arbitrations, in California.  The study looked at 3,945 arbitrations, of which 1,213 were decided by an arbitration award.  See abstract of this study. 

Key conclusions include: 1) employees win 21.4% which is considerably lower than win rates in trials, 2) among those few wins by employees, the median award amount was $36,500 and the median award was $109,858, both amounts substantially lower than that reported in litigation awards, 3) mean arbitration fees were $6,340 in cases overall and $11.070 for cases disposed of by an award following a hearing (In 97% of these, the employer paid 100% of the fees other than a small filing fee - pursuant to AAA rules), 4) in 82.4% of the arbitrations, the employee was paid less than $100,000 per year.  Note that the author must be comparing California arbitrations to California state court trials.  The success rate of employees in california state courts is generally higher than that found in federal courts.  See my prior post regarding success rates in federal courts on a national level.   

The study also examined whether there was a repeat player effect, that is, wherher employers who appear repeatedly would receive favorable treatment.  The study indicates that yes, employers who appear more than once achieve significantly lower awards.  The study indicates that when the same arbitrator decides a case with the same employer from prior arbitrations, then those employees receive lower awards and win less often. These findings support the anecdotal evidence suggesting that repeat employers do better and they do better in particular when they use the same arbitrator.  

The repeat player effect has a large impact on employees, since employees will very rarely have more than one arbitration.  Employment arbitrations are far different than labor arbitrations, in which the union would also receive some repeat player effect. 

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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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How do employment lawyers choose clients?  Mike Maslanka, a defense employment lawyer, talks about this topic.  He discusses a talk he had with a plaintiff employment lawyer from Houston.  The Houston lawyer said he asks two questions: 1) what reason did the employer give for terminating you?  2) what was the real reason?  This plaintiff lawyer from Houston said he believed these two questions would "pry out the truth" regarding what happened.  I agree these two questions are key.

Mike then offers his version; as a defense oriented employment lawyer, he considers two quotes when choosing clients: 1) Salespersons often say the best sale they make is the one they did not make, and 2) Mark Twain warned that is often easier to stay out than to get out later.  I agree.  As Mike says, life is too short to deal with difficult clients.  I agree completely.  

This is especially true when considering plaintiff clients.  As I have mentioned before, very, very few potential clients come see me because they seek revenge or because they are looking for a pot of gold.  Most simply want some sort of vindication or recognition by someone in authority that they have been wronged.  But, they do want me to represent them sometimes with as little investment on their part as possible. They want me to take their case on contingency with no requirement that they pay anything.  So, yes, they may not tell me all the bad news in that first meeting.  We need to "pry it out" sometimes.  And, in the prying out process, we do sometimes learn which clients we need to avoid for many reasons. 

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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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 Recently, I wrote about a study showing that employers are losing more discrimination cases this past year.  This was a study published by Manpower, a human resources firm.  Yet, a separate study by two Cornell professors published in the Harvard Law & Policy Review shows just the opposite, that plaintiffs in employment cases are doing worse.  These two professors are the same persons who prepared a study several years ago showing that employment plaintiffs generally do worse in federal court than other types of plaintiffs.  Well, now, in this latest study, based on data from 1970 to 2006, we see that within the last five years, the number of employment cases has dropped dramatically in federal court.  In 2001, employment cases accounted for 10% of all federal lawsuits.  In 2006, that number dropped to 6%.  I am sure that drop is due to the ever increasing use of summary judgment in employment cases.  

For example, this study finds that while defendants (employers) and plaintiffs (employees) appeal about as often as each other, the defendant is ten times more likely to win on appeal.  Too, the pretrial reversal rate is far higher for defendants (30%) than for plaintiffs (10%).  "Reversal rate" refers to those times when the lower court finds in favor of one party or the other.  If you are a defendant, you have a 30% chance of reversing the district court.  As a plaintiff, you have only a 10% chance of obtaining a reversal.  Pretrial disposition refers primarily to summary judgment and motions to dismiss.  So, when motions for summary judgment or to dismiss are granted, the employer has a 30% chance at getting the decision reversed.  While, the plaintiff has only a 10% chance at reversing the adverse decision.  

Looking at the reversal rate after a trial has occurred, the disparity becomes more clear.  Defendants have a 41% chance of obtaining reversal.  While, a plaintiff (employee) only has a 9% chance of getting the trial result reversed.  Thus, the authors point out, the federal system heavily favors the defendant (employer).  

As the authors explain, this result is counter-intuitive.  Discrimination cases by definition rely on evidence of intent and private conversations.  One would expect reversal of a jury decision to be rare.   Or, one would at least expect that reversal of a jury decision to be about the same for both parties.  Since, trial outcomes in discrimination cases depend so much on credibility determinations by a jury.  Such cases ought to be virtually immune from appellate review.  The appellate judges were not present at trial to observe witness testimony.  The authors believe the best explanation for this apparent discrepancy is that the federal judges have an "attitudinal" bias against such claims.  That "attitudinal" bias would certainly comport with my experience with federal appellate judges.  They are, on the whole, remarkably skeptical of discrimination claims.  

But, so are federal district court trial judges.  They are on the whole just as skeptical of discrimination claims.  The authors note that federal trial level judges are skeptical toward discrimination claimants.  Discrimination plaintiffs are among the least successful sorts of claimants in federal court.  

The data from 1998 to 2006 shows the following success rates for plaintiffs: 

ADA - 9% (Manpower study: employer wins 52%)

Title VII -11%

ADEA -12% (Manpower study: employer wins 33%)

FMLA -20%

The Manpower study I referenced on Jan. 6, 2010 does not describe the source of their data.  This Cornell study published in the Harvard Law & Policy Review drew from federal numbers.  Federal district clerks keep painstaking detail regarding each lawsuit filed.  So, the Cornell study is based on solid data.  The Manpower study relies on data collected by Jury Verdict Research.  My experience with verdict research firms is that they rely on information regarding cases provided to it on an ad hoc basis on its own or from other sources.  The information is still relevant when compared to prior years.  But, JVR's data is probably not as complete as federal systemic data.   So, the Cornell study is scientific, while the JVR study probably is not.  It is fair to say that federal courts remain a very inhospitable place for discrimination claimants.  

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 I talked a while back about how it can be hard to find a plaintiff lawyer for employment cases.  How about those times when the plaintiff employment lawyer does not want your case?  Harold Goldner, a plaintiff employment lawyer in Pennsylvania, talks about some cases he (and I) do not want to accept.  

A young man called me one time and insisted he cussed out out his boss one time, not twice as his boss claimed.  I had to explain to him that a boss can fire you even for merely cussing him out one time.  Yes, folks, hate to break the bad news to you, but you can be fired for unfair reasons (or for reasons some people believe to be unfair).  Texas is what is known as a "at will" state.  You can be fired "at will" and you can quit "at will."  Most states are "at will."  We are no different.  Except for a few situations, discrimination, a union agreement, or a written employment agreement, among other situations, a person can be fired for any trivial reason.  There is still no substitute for hard work and making an effort to get along. 

In my experience, the best plaintiff is the reluctant plaintiff, the one who comes to see a lawyer only as a last resort.  

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