1. Preparing the Executive for Deposition
Deborah Adams
Frost Brown Todd LLC
Charles High
Kemp Smith LLP

2. They want to do what to me?

3. What is a “Deposition”?
One step in the factual investigation of a lawsuit
After a lawsuit is filed, lawyers send paper discovery requests
Next is usually depositions of people with knowledge of facts

4. What Is A Deposition?
A deposition is a process whereby an attorney asks a witness questions, which the witness must answer under oath.
You will be asked questions about policies and practices of your Company
You will be asked questions about the Plaintiff and his employment with the Company
You will be asked about your role in decisions impacting the Plaintiff
You may be asked about other employees and how they were treated
You may be asked personal questions about your job, experience and life
An attorney for the Company will accompany you to the deposition and make objections on your and the Company’s behalf.

5. Overview of Depositions
Purposes
Discover Relevant Facts
Nail Down Parties’ Positions
Obtain Admissions
Create Dread
Goals for Plaintiffs –avoid summary judgment; class certification, settlement leverage; embarrassment

6. What is a deposition? It is NOT a casual conversation
It is sworn testimony under oath that can be used in court
What is said and how it is said are very important
Everything is recorded, typed, and put into booklet form – can read and sign

7. What is a deposition? May also be videotaped
Once concluded, depositions are used to support motions, including motions for summary judgment, and to prepare for trial
Many, if not most, cases are settled after depositions and in large part based upon what was said or not said in depositions

8. What Is a 30(b)(6) Deposition?
Federal Rule of Civil Procedure 30(b)(6) allows an examining party to request that a corporate entity designate witnesses to speak on behalf of the company about specific issues listed by the examining party
You are speaking on behalf of the Company, not yourself
Your testimony can be used against the Company in this proceeding and future proceedings
You may be asked and will be prepared to discuss things beyond your personal knowledge

9. Preparation for Deposition
Two areas of preparation
Procedural
Substantive

10. Witness Preparation Every lawyer has own way of preparing witnesses
Some prepare more than others
Many of the techniques are the same regardless of position
Additional issues must be covered if the person is the HR Manager, CEO, or other high ranking official

11. Key Rules for Depositions
ALWAYS TELL THE TRUTH
LISTEN AND ANSWER ONLY THE QUESTION ASKED
DO NOT ANSWER A QUESTION UNLESS YOU UNDERSTAND IT
DO NOT GUESS: IF YOU DON’T KNOW THE ANSWER, SAY “I DON’T KNOW” OR “I DON’T RECALL”

12. Key Rules for Depositions
DO NOT VOLUNTEER INFORMATION
DO NOT IDENTIFY PEOPLE OR DOCUMENTS UNLESS SPECIFICALLY ASKED ABOUT THEM
DO NOT GET ANGRY

13. Key Rules for Depositions
WATCH FOR QUESTIONS WITH MULTIPLE PARTS
DO NOT FEEL DEFENSIVE
DO NOT TRY TO BE FUNNY
BE CONFIDENT-NOT AFRAID
LISTEN TO YOUR LAWYER

14. Deposition Guidelines
You are never off the record
You do not have to have an opinion
You do not have to assume
Hypotheticals
You do not have to know the answer even if it appears that you should
You are in control
Breaks when you need one
Do not bring anything with you – no briefcase, paper, notes, etc.
unless told otherwise

15. Scope of Testimony
You should expect to be asked and to answer general questions about how your Company does business
The scope of your testimony depends on your position and experience with your Company
Unless you are being offered and prepared as a Rule 30(b)(6) type witness, you should not expect to be testifying about items outside your personal knowledge
Limited by time of your employment
Limited by your position, business unit, etc.

16. DEPOSITIONS – LIKE LIFE – MAY NOT GO PERFECTLY

17. Preparing Your Mind You are in for a long day
You will feel out of your element – Resist the urge to be the smartest in the room
Resist the urge to show all of your knowledge vs. just answering the question
Make sure you hear the question
Make sure you understand the question
Only answer the question

18. Truth and Accuracy
Do not tell what other people said or what you think unless you are specifically asked to do so
Before answering a question, pause for a second and repeat the question in your mind
You can refer to documents if needed
Do not guess or speculate
Be accurate about how sure you are—if you answer and then have doubt about your recollection you can say so
Do not assume that long-past events are always dim in your memory

19. Form of Questions Be sure you understand the question
Beware of compound questions
Example: “Isn’t it true that the Company has a policy against overtime and managers and often failed to follow that policy?”
Beware of leading questions containing half-truths
Example: “Seeing how all managers spot checked employees’ hours, they must have known that employees were working off-the-clock?”
Beware of yes or no questions
Exception: if a question can be truthfully and accurately answered with only a Yes or a No, give the correct answer and stop.
Beware of exact distances, numbers, dates and times

20. Objections and Objectionable Questions
Vague
Asking for speculation
No foundation
Compound
Overly broad
Argumentative
Misleading
Misstates prior testimony
Contains an invalid or unsubstantiated assumption
Asked and answered
Privileged

21. Cautions You may be interrupted, but keep calm.
You have talked with lawyers, but the content of your conversation is privileged.
Do not be upset if there are some inconsistences in your testimony, this is natural. Furthermore, you will have an opportunity to fix it later.
Do not be upset if you can’t tell your story all at once – your job is only to answer the question that is asked.
Remain dignified at all times, even if the questioning attorney is abrasive or confrontational.

22. Typical Areas of Inquiry
Educational background
Work history
Work history with Company
Personal History/Life
Knowledge of Facts
Relationship with Parties and Witnesses

23. Preparation for Deposition
Substantive: Legal Theory Applied to Facts
Understand the Legal Basis of Plaintiff(s)’ Claims
Understand the Company’s Position
Review and understand the facts about which you have personal knowledge or will be asked to present

24. Items for Review Applicable Company Policies Company Documents
Personnel Files
Communication Documents—
Pleadings
Written Discovery
Deposition or other testimony

25. Witness Preparation Don’t Prepare Yourself Work with counsel
Materials prepared to help remember events may be discoverable
Don’t review materials not directed by counsel to review
Don’t refresh memory by talking to other potential witnesses or plaintiff
Don’t give up client – attorney privilege

26. Witness Preparation Know and understand the legal issues
Review with lawyer – things change so be current on law
Know what plaintiff has to prove
Know defenses being asserted
Review legal pleadings

27. Witness Preparation Don’t Try to Win the Case Not your job
Push aside any feelings of guilt for getting sued – it’s a risk of being an employer
No duty to educate plaintiff’s lawyer

28. Witness Preparation Be Confident
Don’t get unsettled by questions like “Do you treat all your employees like you treated my client?”
And “Do you agree with the decision to fire my client?”
And “Would you have done anything different in this case?”

29. Witness Preparation Know what happened to Plaintiff and why
Juries believe executives, especially HR Managers, should know everything
Be familiar with who, what, and when
Know the investigation (if any) and be prepared to defend it

30. Witness Preparation
Know facts about similar situations in your experience field
If none, know there are none
If others, know if similar
If different, be able to explain why

31. Witness Preparation Know the rule or policy
Background and reason for rule
How previously applied
Any exceptions
Basis for exceptions
Why no exception in this case

32. Witness Preparation Be Professional
No humor, smart remarks even if feel under attack
Do not show any signs of hostility – plaintiff’s lawyer evaluating how you will appear to the jury
Smile, but don’t relax

33. Key Take Away Points Be truthful and accurate in every answer
Answer only the question that was asked
Do not volunteer information unless it is necessary to clarify your testimony
Do not be bullied into changing your answer or agreeing with Plaintiffs’ attorney’s characterization of your testimony
Remember that you are testifying on behalf of the Company and may be bound by your answers in this proceeding and future proceedings

34. Prepare
Tell the Truth
After the first five minutes, have fun!

36. Questions

37. Preparing the Executive for Deposition
Deborah Adams
Frost Brown Todd LLC
Charles High
Kemp Smith LLP