1. Plaintiff’s Counsel v. HR: Survive Your Deposition
CI-SHRM Legal and Legislative Conference
Emily S. Pontius
February 25, 2016

2. Agenda The Basics Preparation Testifying Best Practices
Who, What, When, Where, Why
Preparation
Meet, Review, Remember
Testifying
Listen-Think-Talk, Objections, Standing Your Ground
Best Practices
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3. The Basics
Who
What
When
Where
Why
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4. Why me? Decision Maker Expertise regarding HR policies
Historical Knowledge
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5. Deposition Preparation
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6. Deposition Preparation
Meetings with Counsel
Attorney Client Privilege
Explanation of Deposition and Process
Case Discussion
Recalling Facts
Organizing Thoughts
Opposing Counsel
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7. Deposition Preparation
Tell the truth
Stick to what you know
Get it over with
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8. Deposition Preparation
Documents may be the focus of preparation and the deposition
Counsel will tell you what to review
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9. Deposition Preparation
If you have documents that have not been produced, give them to counsel
Do not use them for preparation without first consulting with counsel
Do not create new documents
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10. Testifying
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11. Testifying at your deposition
Always tell the truth
Stick to what you know
Be thoughtful
Listen
Pause
Ask for clarification
Speak carefully
Stop after you answer the question
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12. Testifying at your deposition
Answer “yes” or “no”
Review exhibits completely and carefully
Answer when you are ready
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13. Testifying at your deposition
Are these dos or don’ts?
Guessing and Speculating
Making Assumptions
Answering “I don’t know”
Volunteering Information
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14. Testifying at your deposition
More about Telling the Truth
Speak from Personal Knowledge
Not
What you were told and
What you believe would have happened
What should have happened
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15. Testifying at your deposition
Listen closely
Do not accept the questioner’s assumptions or speculation
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16. Testifying at your deposition
Correct mistakes as soon as possible before the deposition is over
Self-correct on the fly
Self-correct after a break
Have company counsel ask you questions to correct your testimony
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17. Testifying at your deposition
Your job is to answer questions
You control the tempo and timing
Answer at your own speed, even if the questions are fast
Don’t be bullied into agreeing with opposing counsel
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18. Testifying
Q: Joe was an excellent employee before January 1, correct? A: Correct. Q: Isn’t it correct that he had no discipline in his file and no complaints? A: Yes. Q: He told you about his disability on January 5, correct? Q: And his performance problems started on January 16, correct? Q: It’s possible, isn’t it, that his performance problems were because of his disability? A: That’s possible. Q: So you would agree with me that you terminated his employment because he had a disability, correct?
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19. Testifying: Slow down and think
Q: Joe was an excellent employee before January 1, correct? A: I don’t know, I was not his supervisor. Q: No discipline in his file and no complaints, correct? A: I am not aware of any documented discipline or complaints… Q: You found out about his disability on January 5, correct? A: He told me he would be absent for an appointment, that’s all… Q: And Joe’s performance problems started on January 16, correct? A: He may have had issues before that, but not documented. Q: It’s possible, isn’t it, that his performance problems were because of his disability? A: I don’t know the reason. He did not provide… despite opportunity Q: So you would agree with me that you terminated his employment because he had a disability, correct?
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20. Stand Your Ground
Don’t be pressured to change your answer just because counsel asks over and over
You can rely on managers when making decisions
Q: Did you ever double-check this before you recommended termination?
Q: You only needed a 5-minute conversation to decide to fire this woman?
You have good judgment—Defend it.
Know your qualifications
Defend your decisions
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21. Testifying: Stay in your lane
Q: If you were the boss, would you have made the decision to fire Joe? A: I am not the boss. I can’t speak to that. I did not supervise him and I don’t know that area of the company, so I can’t speak to that either.
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22. Testifying at your deposition
When you answer the question, Stop!
Answer the question asked.
Don’t do the other side’s work for them.
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23. Common traps Subject attributions False predicate Summarized testimony
“Would you say it was ‘substantial’”
“Would you say it ‘possibly/probably’ happened”
False predicate
“Is this similar to how other employees were terminated for making a claim”
Summarized testimony
Make sure summary is perfect before agreeing or answering further
Rephrased testimony
Make sure rephrasing is perfect before agreeing or answering further
Vague, ambiguous, or hypothetical questions
Absolutes (i.e., never, always, etc.)
The “box out”
Q: Have you told me everything?
A: Yes, that I can recall now.
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24. and stick to what you know
Deposition pointers
Listen carefully
Understand before answering
Think about truthful and accurate answer
Stick to what you know
Answer the question and stop
Tell the truth
and stick to what you know
© 2015 Fredrikson & Byron, P.A.

25. Best Practices Today Stay calm
Give difficult employees every chance to succeed, and document those efforts
Keep management on the right track. You are the expert.
Today’s could be tomorrow’s deposition exhibit – be professional and painfully polite
Document the facts of in-person and telephone communications
Avoid unnecessary delays in providing information and paperwork to employees
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26. Questions or Comments?
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27. Thank you!
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