Insight From an Employment Litigator

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INSIGHT FROM AN EMPLOYMENT LITIGATOR


Today’s Roadmap:

1. Pre-Litigation Tipsa) Just the Factsb) The Truth Will Set You Freec) Deviation is the Root of All

Most Evild) Train Your Managers and

Executivese) Own Your Decisions

2. Litigation Tipsa) Deposition Prepb) Trial Testimony


PRE-LITIGATION TIPS


Just the Facts:

Don’t “Kitchen Sink” Documentation

•Over documenting and complicating issue can bring diminishing returns and/or provide loopholes to employee’s lawyer

•Where issues can arise: (1) termination form identifies history of issues that weren’t previously documented; (2) TWC unemployment response/hearing identifies issues not addressed in termination document.

• Helpful Tip: Provide documentation to employee (scare off plaintiff lawyers)


Just the Facts: Minimize Your Subjectivity

• Documentation regarding instances and discipline should be limited to the facts.

• Point to handbook policy to explain violation

• Subjectivity can lead to discrepancies which an employee’s lawyer can twist to show discrimination. •Tip: Minimizing your subjectivity needs to be weighed against being overly vague. Documentation still needs to contain all the facts.


Just the Facts:

Don’t Ruin Good Documentation•Jurors believe documents over testimony, which is why lawyers say “document, document, document.”

•Good documentation, though, can be ruined by your “memory.”

•Trust your documents!


Just the Facts:

Don’t Change for Litigation•Similar to previous tips, adjusting reasons for termination and discipline give jurors reason to question your documentation and testimony.

•If you consistently document the facts as they occur there is no reason to add or modify the facts one, two, or even three years down the road.


The Truth Shall Set You Free: Take action in the moment.

•If an employee violates a policy, document and discipline as necessary.

•Avoiding conflict now often leads to greater conflict and headaches in the future.

•Both the employee and the jury are much more likely to believe you if you took action at the time of the infraction instead of going back and recreating a summary of events


The Truth Shall Set You Free:

This is Not the Time to Sugar Coat

•Never use a vague or less-than truthful reason for disciplining/terminating an employee if the true reason is a legitimate, non-discriminatory reason.

•Example: Employee discrimination case went all the way to the 5th Circuit because employer didn’t want to hurt employee’s feelings when giving reason for termination.


Deviation is the Root of ALL Most Evil:

Stick to Your Policies•You paid a lawyer a lot of money to draft your handbook/policies, no reason to deviate.

•Deviation allows for unequal treatment and claims of discrimination.

•If you need to deviate, make sure you document why you have made the exception.


Train Your Managers & Executives:

•When it comes to training, remember training your managers and executives on employment issues is just as important as training your other employees.

•Managers and Executives have a responsibility to spot potential discrimination and harassment.

• Can’t turn a blind eye.


Own Your Decisions:

• Remember Texas is “at-will,” so you can discipline and terminate an employee for practically any reason or no reason.

• But, best practice is to articulate in writing THE reason and stick to it! (i.e., Don’t Kitchen Sink).


LITIGATION TIPS


Deposition Prep: First, what is a deposition?

•A deposition is a statement under oath, taken down in writing, to be used in court in place of the spoken testimony of the witness.

Second, what is the purpose of a deposition?

•Fact finding and gathering•Locks witness into testimony•Used to perjure witness at trial

Third, what are the general rules?•TX State court – 6 hours on the record (Fed. = 7 hours)

•Minimal objections allowed. Generally required to testify regardless if relevant


Deposition Prep: General Understanding of the Process*:

• Present at a deposition are generally (1) the deposing lawyer, (2) the defending lawyer, (3) the court reporter, (4) the parties, and (5) the deponent.

• Deposing lawyer asks questions that the deponent is required to answer under oath.

• Defending lawyer is limited on types of objections and deponent is often required to testify despite objection.

• Deponent is often shown documents.

•*This prep is meant as a guideline, but you should always follow the advice of your lawyer and the lawyer’s opinion may vary from this guideline.


Deposition Prep:

How to Prepare*:• First, am I required to prepare?

•Unless you are a corporate representative, you have no legal requirement to prepare (i.e., review documents or even meet with your attorney).

• If I’m not required to prepare, should I?

•Easy answer, YES! Tougher question is how much and how to prepare.

*This prep is meant as a guideline, but you should always follow the advice of your lawyer and the lawyer’s opinion may vary from this guideline.


Deposition Prep: How to Prepare*:

Should I review documents?•It Depends…typical lawyer answer.

•If you are designated as a Corporate Representative you have a duty to gain knowledge to answer questions.

•Fact witness can testify “I don’t remember.”

•Having a bad memory can backfire if you “miraculously” have a terrific memory at trial.

•Caution: Make sure you testify to the facts you remember and not what you remember a document saying the facts were!



Deposition Prep:

How to Prepare*: Practice How to Answer Questions

•WARNING: This does not mean anticipate every question a lawyer may ask.

•Keys to Answering Deposition Questions:

1. Listen to the question!2. Listen to the question!3. Make sure you

understand the question before answering.

4. Formulate your answer in your head before answering.



Deposition Prep:

How to Prepare*: Practice How to Answer Questions Cont.

•If the question is a yes or no question, answer should be one of the following:

• Yes• No• I don’t know• I can’t recall• I don’t understand your question, can you rephrase



Deposition Prep:


•If the question asks you to explain:

•Again, formulate your answer in your head before answering.

•Short, succinct answer. Only answer the question posed.

•Do not need to answer in complete sentences (think lists)



Deposition Prep:


• If the question asks you to list every time….:

•Again, formulate your answer in your head before answering.

•Short, succinct answer. Only answer the question posed.

•Be careful not to trap yourself in by forgetting an instance.

•Best practice is to end your listing with “that’s all I can recall at the moment.”



Deposition Prep:


• Only answer to what you “know”!

•Remember you are under oath and the questions generally ask you to testify to what you personally know. Not what you think you know or what someone told you.

• EXAMPLE: •Question: Is Paul W. Simon a lawyer?

•Answer: No. (cannot know this answer even if you called the State Bar. You could testify, “The State Bar informed me that Paul W. Simon is a lawyer.”)



Deposition Prep:


• Only answer to what you “know”!

• ANOTHER EXAMPLE: •Question: Do you know why the employee was terminated?

•Wrong Answer: Yes, Sally Smith in HR told me the employee was terminated because …..

•Correct Answer: No. (thinking to yourself, I did not make the decision so I don’t know what was in the decision maker’s head)



Deposition Prep:

Now You’re Prepared, What to do at the Deposition*:

•First, remember this is your deposition and you control the pace.

•Second, remember the tips (listen, answer the question in your head, yes and no answers when possible)

•Third, don’t try and outsmart the lawyer.



Trial Testimony:

How does trial testimony differ from your deposition?

•First, you are trying to convince a jury (or judge) that your version of the facts are correct and you are an honest person.

• At the deposition you are not trying to convince anyone, you are just answering the questions as concise as possible.

•Second, most of your testimony is already known by the lawyers from your deposition so make sure you testify consistently.


Trial Testimony:

How does trial testimony differ from your deposition, cont.?

• Third, unlike in your deposition you will not be allowed to testify to hearsay and will be required by the attorney and judge to follow evidentiary rules.

• Fourth, you won’t have an opportunity to change your testimony!


QUESTIONS?

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Insight From an Employment Litigator