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.