Deposition Dilemma: When Should Plaintiff’s Counsel Question the Plaintiff?

In most employment discrimination cases, when defense counsel completes his or her examination of the plaintiff, the deposition is over. Sometimes, however, the plaintiff’s employment lawyer will need to ask additional questions of the plaintiff. Experienced employment attorney Andrew H. Friedman* has identified five situations in which plaintiff’s counsel should give the plaintiff an  opportunity to provide additional testimony:

1.            Plaintiff Made a Material Mistake in His Testimony

Ask your client questions if he made a material mistake in his testimony. For example, in a religious harassment case, suppose that (a) your client testified that, in October 2010, his supervisor gave him a cartoon that made fun of the prophet Mohammed; and (b) your client actually was out of work ill during the entire month of October 2010. You have to ask questions that will allow your client to correct his mistake:

Q.           Earlier in your deposition, you testified that in October 2010, your supervisor gave you a cartoon that made fun of Mohammed, correct?

A.            Yes, but I made a mistake on the date. That actually took place in August or September 2010.

2.            Plaintiff Omitted Responsive, Material Information from Her Testimony

Ask your client questions if she omitted responsive, material information from her testimony. For example, suppose that (a) your client testified to three instances in which she was sexually harassed; (b) your client testified that she couldn’t, at that time, recall any other instances of sexual harassment; and (c) you are aware of two additional incidents of sexual harassment about which your client had forgotten. In this situation, you should (after preparing your client during a break) allow her the opportunity to supplement her testimony:

Q.           Earlier in your deposition, you testified to three incidents of inappropriate sexual conduct by your supervisor. First, when your supervisor repeatedly asked you out on dates even after you told him no. Second, when your supervisor sent you flowers on your birthday and Valentine’s Day. Third, when your supervisor touched your breasts. Are those the only incidents of inappropriate sexual conduct by your supervisor toward you?

A.            No, he also spoke to me about his sex life with his wife, described to me what type of sex he would like to have with me, and called me into his office and showed me pornography on his computer.

Q.           Have you now identified all of the incidents of sexually inappropriate conduct to which your supervisor subjected you?

A.            No. He engaged in other sexually inappropriate conduct toward me, but that’s all I can remember right now.

3.            Plaintiff’s Testimony Created a Materially False Impression

Ask your client questions if his testimony has created a materially false impression. For example, suppose the following, in a disability failure to accommodate case: (a) your client testified that he never told anyone about his disability; and (b) your client never asked for an accommodation. In this situation, ask (again, after preparing your client during a break):

Q.           Earlier in your deposition, you testified that you never told anyone in management at your employer about your disability, and that you never asked anyone in management for an accommodation. Is that correct?

A.            Yes.

Q.           Why didn’t you tell anyone in management about your disability?

A.            I didn’t have to tell them because they knew about my disability. One day, when I didn’t report to work, my wife called my supervisor and human resources to let them know that I wouldn’t make it into work because I had epilepsy and I’d been taken to the doctor because I’d had a seizure.

Q.           Did you need any type of accommodation at work?

A.            Yes, my doctor suggested that I use a different type of computer monitor at work because the one I was given by my employer could bring on a seizure.

Q.           Why didn’t you ask anyone in management for an accommodation?

A.            Again, I didn’t need to ask. While I was in the hospital, my wife told me that she had asked my supervisor and human resources for a different computer monitor for me because of my disability. Then, when I went back to work, my supervisor told me that he had done some research on the Internet and determined that I didn’t really need a different type of computer monitor and, if I didn’t like it, I should look for a new job.

4.            Plaintiff Needs an Opportunity to Explain

Ask your client questions that might help explain any problems with her testimony, demeanor, or ability to recall information:

Q.           Do you feel that you have given your best testimony today?

A.            No.

Q.           Why not?

A.            At the beginning of my deposition, I said that [name of harasser] scares me, and I didn’t feel comfortable with him being in this conference room, sitting just a few feet away from me. I asked that he leave. [Name of defense attorney] said that [name of harasser] was going to stay. Instead of leaving, he stayed in the room and stared at me, made derogatory facial expressions at me, and laughed at me. He made it difficult for me to concentrate, and I think that if he had left or not been allowed to continue to retaliate against me, I would have been able to testify better.

5.            The Case Needs to Be Settled

Finally, consider asking your client questions in those cases that need to be settled. In this situation, you would ask questions of your client that are geared toward giving up favorable information. One note of caution: If this strategy doesn’t work (i.e., it doesn’t prompt settlement), you may have given away valuable information and, perhaps, revealed your strategy to the defense.

Practice Pointer: As noted above, you must prepare your client for any questions you need to ask. Preferably, this should be done during the lunch break or another break, before the defense attorney completes his examination, so that once defense counsel finishes his questions, you can begin asking questions immediately, without taking a break. This will help immunize you and your client from claims of coaching.

*Andrew H. Friedman is a name partner in the law firm of Helmer • Friedman, LLP (www.helmerfriedman.com) in Los Angeles, California. He has practiced primarily in the area of employment law since completing his judicial clerkship with the Honorable John T. Nixon (United States District Court for the Middle District of Tennessee) in 1990.  Mr. Friedman has litigated virtually every type of employment case (on behalf of management, individual defendants, and plaintiffs) in the California state and federal courts. He has represented employers and employees in administrative matters pending with numerous governmental agencies, and has comprehensive experience negotiating employment contracts and severance and settlement agreements on behalf of both employers and employees. Mr. Friedman also has served as a neutral fact-finder.  Mr. Friedman is a frequent speaker and a prolific writer on employment-related topics. This post is excerpted from his book, Litigating Employment Discrimination Cases.

Litigating Employment Discrimination Cases is a comprehensive practice guide that combines a thorough and detailed analysis of the substantive law, with how-to advice, instructions and tips for all aspects of employment discrimination cases, from case evaluation to resolution without trial.

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