People new to lawsuits do not appreciate how depositions work. No judge is present at a deposition. So, the lawyers’ behavior, good or bad, depends entirely on them. We see this regarding objections. In front of a jury, we lawyers avoid objections, because the jury will not understand. They may think we are trying to hide something – which sometimes we are. But, with no judge and no jury, its “katy bar the door.” Some lawyers go crazy objecting at depositions. In one case, a lawyer was sanctioned by a New York federal court because she objected some 600 times in one deposition. At some point during the eight hour deposition, the parties called the judge’s office, but the judge could not take the call. He told them to make concise objections that only address the form of the question. But, the lawyer, Amatullah Booth, continued to make frequent objections that appeared to affect the testimony of the witness. Her objections appeared on 400 pages and 83% of the transcript.

Later, the lawyers contacted the judge’s office again. The judge’s instructed Ms. Booth to just mark questions in the transcript which she felt should not be answered. Despite that instruction, Ms. Booth later instructed the witness, a police officer, not to answer those questions. Ms. Booth, an assistant corporate counsel, instructed the witness not to answer 20 times. Magistrate Judge Pollack ordered the City of New York to pay for the deposition. The judge found that Ms. Booth sometimes objected “asked and answered” even thought the question had not been answered. Sometimes, she objected based on relevance and harassment, even though the question was relevant.

Magistrate Judge Pollack cited some examples:

Opposing Counsel: “Did you see yourself on the video?”

Witness: “Yes”

Opposing counsel: “What were you doing?

Booth: “Objection. Vague”

Witness: “What — where?”

Another example:

Booth: “Objection. Asked and answered.”

Opposing counsel: “Asked and answered is not an appropriate objection.”

Booth: “Harassment.”

Opposing counsel: “None of those are.”

Booth: “It is harassment.”

See ABA Bar Journal report. It is harder to behave when no judge and no jury are present.

It is always hard for celebrities to accept the basic rules of litigation, such as the witness has limited control over a deposition. In a recent deposition, Justin Bieber violates almost every rule of how to successfully testify in a deposition. He objects on his own behalf to reasonable or halfway reasonable questions, he argues with the opposing lawyer, and he makes no attempt to convey the information he may need in his defense. Mr. Bieber is also simply "bratty" in these excerpts. See Justin Bieber’s deposition excerpts here. The lawsuit stems from an incident in which a member of the paparazzi was struck by one of Mr. Bieber’s bodyguards. 

One significant mistake occurred when Mr. Bieber was asked if he had ever disciplined one of  his bodyguards.  "What" he asked.  "Am I his parent?"  In a lawsuit accusing him of not controlling his bodyguards, that is surely a critical admission.  His admission reflects his lack of preparation by his lawyer.  No one explained to him the issues in his lawsuit.  My guess is he was too busy to bother with meeting with his lawyer prior to the deposition. 

And, one cardinal rule in all depositions is do not let the opposing counsel "push your buttons."  In one exchange, the opposing lawyer asks Mr. Bieber about Selena Gomez.  Mr. Bieber warns the lawyer not to ask that question, again.  The opposing lawyer promptly asks the same question again and again, as Mr. Bieber starts raising his voice, warning the lawyer again and again. You think Mr. Bieber indicated to the opposing counsel how to push his buttons?  I do.  And, that is why Mr. Bieber will eventually pay more, not less, to resolve this lawsuit. 

A deposition is when one side has the opportunity to cross-examine an opposing witness prior to trial.  It is a key event in the discovery process.  Lady Gaga, whose real name is Stefani Germanotta, is being sued for unpaid overtime by a former legal assistant.  Jennifer O’Neill claims she is owed $393,000 for 7,168 hours of overtime pay.  That is a lot of overtime.  Lady Gaga claims Ms. O’Neill was paid $75,000/year in salary.  Apparently, Lady Gaga is claiming that Ms. O’Neill was on salary and exempt from overtime pay. 

During her deposition, Lady Gaga insisted this lawsuit was "bulls—t" and the lawyer knows it.  She (Ms. O’Neill) thinks she is the "queen of the universe," and she did not want to be a slave to one, because, said the Lady, "I’m the queen of the universe everyday."  

Lady Gaga insisted her employees work no more than eight hours per day, although the time is spaced throughout the day. You don’t get a schedule you can like "play f—ing Tetris at your desk for hours."  "This is — when I need you, you’re available."  See ABA Bar Journal report

In a deposition, the witness should always remember that everything said can and probably will end up in front of a judge and jury.  It is easy to forget during a deposition that the real audience is the judge and jury, not the opposing party and her lawyer.  These statements will likely haunt Lady Gaga during her lawsuit.  And, if she cannot document her assistant’s time better than when "I need you," she may well lose this lawsuit. 

Depositions of the employee victim in a discrimination case is a key event.  The employee must demonstrate that s/he can tell a coherent story and maintain some composure about one of the most difficult events in his/her life.  Deposition strategy for the employer’s lawyer essentially is to obtain information from the employee.  Often, the defense lawyer specifically seeks information from the employee that is damaging to the employee’s case.  The defense attorney wants information he can use against you.  See Pitts Law comments regarding what to expect at a deposition of the plaintiff. 

So, there should be no reason to ask the same question more than once or twice.  Asking the same question continuously is "badgering."  Badgering is defined in the American Dictionary as asking the same question repeatedly.  To ask the same question over and over, knowing what the answer will be is surely someone’s definition of insanity.  Yet, so many of us do exactly that in a deposition. 

More importantly from the defense lawyer’s perspective, when you ask overly harassing questions, you remove any hope of eliciting cooperative testimony.  Many employees expect some degree of cooperation with their employer in a lawsuit.  All bounds may have been crossed, but there will still be some residual expectation for some mininal cooperation.  Once even the slightest cooperation appears foregone, the plaintiff will hedge on every question, no matter how innocent.  And, in these days when settlement is such a part of every lawsuit, the amount necessary to settle will rise exponentially.  

As Mike Maslanka says, the deposition is about the forest, not about the trees.  So, us attorney types, we need to relax a little and "take a breather."

Depositions are key events in any lawsuit.  The Opposing Counsel has the freedom to ask questions that lead to admissible evidence or questions which are reasonably calculated to lead to admissible evidence.  That standard allows a broad range of questions.  Most plaintiff employees are understandably nervous about being deposed regarding their case. 

Some plaintiffs, for example, think they must remember every date, every statement and every key detail.  The human memory does not work like that.  No one remembers every date on which a discriminatory or suspicious act occurred.  But, yes, every employee who files suit should recall in general terms when an even occurred.  Most, if not all of my clients, for example, can recall that they were turned down for time off for Christmas, or that they were denied a requested accommodation a few weeks after July Fourth.  Most of us can recall significant events in our lives in relation to some holiday or time of the year.  if a sequence of events is important to you, then you will surely recall such details.  

Many witnesses, parties or not, will respond with an "I don’t know" or two during their deposition.  But, if the witness tosses out an "I don’t know" too frequently, then their testimony will receive little credit from the judge and jury.  Russ Cawyer at Texas Employment Law Update talks about plaintiffs who do not recall enough.  See his post.  I agree completely.  This truism applies to any witness.  Many managers fail to recall key details.  Once, I counted up the number of "I don’t knows" by one manager during his deposition and argued he did not merit credibility from the court.  He responded to my questions with a "don’t know"  some 20 times in a one hour deposition.  If one side remembers very little and the other side claims to remember very many details, who will sound more credible?  Russ is right, credibility wins trials. 

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.  

 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. 

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.

 

 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.  

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…..