To make it easy for you to prepare for a particular deposition or examination, the book is organized by witness. Each witness-specific section delivers: (1) trial-tested strategies and arguments, (2) model deposition questions specific to cause of action and annotated with tactics, (3) checklists and tactics for direct and cross examinations, with extensive examples sprinkled with practice tips, and (4) summary checklists of the important points that should be inquired into for each cause of action. Tools and advice are provided for both employee and management attorneys.
Mastering the art of questioning employment witnesses is a career-long process.
It can take dozens of years in the courtroom to learn how to persuasively: (1) demonstrate that reasonable economists can disagree, (2) compel an adverse witness to ratify your position, and (3) contradict a manager or plaintiff on an important fact.
Tod Schleier’s Deposing & Examining Employment Witnesses will take years off your learning curve. It is filled with practical strategies, examples, tactics, and tips for successful questioning and other essential elements of employment advocacy:
- Criteria for case selection
- Good storytelling
- Tools for preparing the plaintiff for deposition and trial
- Checklist for deposing the plaintiff
- Model direct and cross-examinations for trial
- Issues that arise when dealing with supervisors and human resources representatives in deposition and at trial
- Deposition checklists and trial examination outlines
- Practical strategies, examples, tactics, and tips for successfully examining these management witnesses
- Value of the testimony of plaintiff’s family, friends, and co-workers
- Tips for attacking this testimony without bullying
- Checklists and trial examinations
Human resources experts
- Decisions that have addressed the use of human resources experts on various issues in discrimination litigation, with emphasis on the tremendous variability of results
- The most frequently used arguments and Daubert objections to human resources expert testimony
- Pattern deposition and trial examination questions
- Economic remedies available to discrimination plaintiffs under Sections 1981 and 1983, the ADA, the ADEA and Title VII
- Issues that typically arise when dealing with economic experts in employment litigation. These issues are addressed in a sample deposition outline, a model direct examination, and a model cross-examination
- Successfully using and examining economic experts in employment litigation
Mental health experts
- Compensatory damages available in discrimination cases
- Types of witnesses used to prove these damages
- Analysis of the psychological tests confronted when dealing with mental health experts
- Tips for effective depositions and examinations
- Supreme Court decisions that have established parameters for the use of statistical evidence in discrimination cases
- Frequently employed statistical concepts and methodologies in employment discrimination litigation
- Issues that generally arise when dealing with statisticians.
- Model deposition and trial examination outlines that demonstrate how to handle statistical issues in practice
- Making statistics interesting and comprehensible to the jury
- Analysis of the decisions of various courts when a defendant requests that a plaintiff submit to an evaluation by a vocational expert under FRCP Rule 35
- Frequently raised arguments and objections to vocational experts’ testimony
- Pattern deposition, direct examination and cross-examination questions to ask the vocational expert during deposition or trial
- Working with and against vocational experts and their testimony
12 Practice Tips From the Book
- The right plaintiff. “In this author’s experience, having tried employment cases for thirty years, the plaintiff is the single most important factor in determining which side will win in a wrongful discharge or discrimination case. The plaintiff will testify and will usually be on the witness stand for at least one day and sometimes two or three days, under the most stressful and grueling circumstances. Throughout that time, the jurors’ eyes will be glued to the plaintiff. Any bizarre, unattractive or unpleasant personality traits will inevitably be revealed. This reinforces why case selection is so important — the bad plaintiff cannot be hidden from the jury.” §2:01
- Red flags. “In addition to the unpleasant or painful personality factor, the following 7 client statements should be clear danger signals to the plaintiff’s attorney:
— (1) “I know my coworkers will support me….” §2:02
- Deposition outline. “An area often overlooked in deposition preparation is the ability to use the plaintiff’s deposition to attack and defuse the employer’s position. Do not become so focused on proving your case that you lose sight of the defendant’s case. Plaintiff’s counsel must understand the employer’s defenses, so as to prepare the plaintiff to disprove and undermine those defenses whenever possible. Plus, you do not want the plaintiff to be surprised at deposition. Therefore,your deposition outline must include the employer’s legal theories and the information that may be elicited from the plaintiff relative to those defenses. You want this information “on the record” so it can be used in your opposition to a summary judgment motion. 23 of the more common defenses that should be anticipated and included in your deposition preparation outline are….” §2:07
- Order of supervisor questions. “A potential drawback to the chronological approach is its predictability. During pre-deposition preparation, defense counsel will often prepare the supervisor using the chronological approach. If the same method is then used by plaintiff’s counsel, the supervisor can often anticipate or predict where plaintiff’s counsel may be going with the questioning. Therefore, a more effective approach is….” §3:05
- Straying from a chronological presentation. “If the facts surrounding a firing are particularly egregious or problematic for the employer, a better approach to the direct examination is first to….” §2:57
- Raise detailed challenge to plaintiff’s mitigation efforts. “On direct, the plaintiff often will testify about his myriad tireless efforts to find employment. Diminish the impact of this testimony by pointing out, in detail, all of the things he could have done, but did not, to find alternate employment. For example….” §2:73.10
- Costly delay. “Many attorneys will wait until discovery is about to close before retaining an economic expert. Counsel may believe that he can gather the necessary information relative to damages or, alternatively, the decision to retain an expert may be delayed due to the costs that will be incurred in retaining the expert. Counsel may decide to wait to retain an economic expert until the court rules on the employer’s motion for summary judgment, so as to not waste money in the event the motion is granted. In almost every case, however, this delay is a mistake. Although counsel will often devote much attention to the liability aspects of the case early on, the failure to collect documents necessary for damages calculations can be a major error. Instead, you should consult with an economist at the earliest stages of a case, sometimes even before the decision to accept a case is made. An early consultation with the economic expert will permit you to….” §6:51
- Finishing strong. “It is important to end the plaintiff’s case with powerful, memorable testimony. Lay witness damage testimony followed by an economist (if the economic loss is significant) can be a powerful way to end the plaintiff’s case. The jury will relate to the lay witness, perhaps even more than to the plaintiff. This witness is a friend, a neighbor, an “average Joe,” just like the jurors themselves. Ask the witness open-ended questions, to let him fully explain the nature of his relationship with the plaintiff. Let him talk to the jury. His empathy and compassion for his friend will make for compelling damages testimony.” §3:140
- Protecting request for gross up. “You should request a gross up when the damage award is significant or when litigation has been protracted. To avoid potential defense motions claiming surprise, in the prayer of the complaint you should plead “such other equitable relief as may be proper” and in the Initial Disclosure Statement include a statement that an offset for income tax consequences of any award will be requested. If you are going to request a gross up, you must provide the court with expert testimony concerning the potential adverse tax consequences, under the Internal Revenue Code, to the plaintiff of receiving a lump sum payment. Several courts that have addressed this issue have refused to award damages without expert testimony. See….” §6:42
- Recalculation tip. “Ask the expert to recalculate the damages figures using either a lower or higher discount [interest] rate. For example, if the expert is testifying on behalf of the plaintiff, ask the expert at deposition what discount rate he would have used if he had been retained by the employer, and how that would affect his damages calculations. As another example, in one recent case the plaintiff’s expert testified that he used a 4.3% discount rate, based upon Treasury bill rates. Defense counsel asked in deposition, “What is the highest discount rate that might be reasonable in the case?” The expert relied, “15%.” The expert was then asked how a 15% discount rate would affect his damages calculations. He testified that it would reduce the $2.1 million estimate to $1.3 million. With this short series of questions, defense counsel had gained an effective tool to use in his effort to reduce the plaintiff’s alleged large economic loss.” §6:66
- Responding to plaintiff’s data. “If the plaintiffs are aggregating statistics, the employer should reply, if possible, that in 98% or 99% of the departments in which there were layoffs, there was no disparity. Alternatively, and more simply, the employer may point out that there was a huge disparity in only one department, which naturally would have skewed the overall numbers. With that done, the employer can then try to show that, with respect to the “bad” department, there clearly was no bias (e.g., an area of work was outsourced). Thus, the employer can locate the cause of the overall statistical disparity, thereby eliminating the global attack and even defending the problem area.” §7:22
- Timing of retaliatory acts establishes causation; hammer this point on direct. “For each instance of alleged retaliation, the direct examination should stress and highlight the short amount of time between the adverse employment action and the protected activity. Incorporate language into your questions showing temporal proximity, such as, “How soon after . . .” or “That was just two months after you filed your complaint with human resources . . . .” Demonstrative evidence, in the form of charts or an easel on which you can write significant dates will provide a visual roadmap for the jury. During closing argument, display a comprehensive timeline that summarizes and demonstrates graphically the temporal proximity between events.” §2:93.4
REVISION 11 HIGHLIGHTS
The new edition of Deposing and Examining Employment Witnesses is packed with new text, case notes, and forms to keep you on the cutting edge of the law and help you work more efficiently. The new materials cover a broad range of issues, including:
Governing Principles of Cross-Examination
- New Text: Practical tips for success in Zoom depositions.
- New Form: Motion in Limine to Permit Use of Video of ___’s Deposition.
Deposing and Examining the Plaintiff
- New Text: Prohibition of arbitration of sexual harassment and sexual assault claims; causation standard in employment discrimination cases; EEOC Guidelines on Telecommuting. • New Case Notes re: paramour preference cases; establishing a same-sex harassment claim; determining “disability” in the Covid era. • New Forms: Plaintiff’s Response to Motion for Summary Judgment in ADEA Retaliation Case; Plaintiffs’ Motion for Equal Pay Act Conditional Collection Action and Authorization of Notice for Expedited Discovery
Deposing and Examining the HR Expert
- New form: Motion to Exclude Plaintiff’s Human Resources Expert.
Deposing and Examining the Mental Health Expert
- New Case Note re: Recoverable damages in a Title VII retaliation case.
Deposing and Examining the Expert Economist
- New Text: Limits on economic damages (emotional distress) available under the Rehabilitation Act.
- New Text: Mitigation of damages and the scope of plaintiff’s responsibility to seek “substantially equivalent employment”: within a reasonable distance of home; by accepting a lower-paying job; by applying for an open position with the defendant-employer.
- New Form: Plaintiff’s Motion for Summary Judgment on Affirmative Defense of Mitigation of Damages.
Deposing and Examining the Labor Market Expert
- New Form: Plaintiff’s Daubert Motion to Exclude Defendant’s Labor Market Expert.
Deposing and Examining the 30(b)(6) Witness
- New Form: Plaintiff’s Motion for Sanctions Regarding Defendant’s Willful Destruction of Evidence.