The Employment Discrimination Plaintiff's Deposition - ABA YLD 101 Practice Series

By Leigh Anne Ciccarelli

Experienced litigators generally agree that the plaintiff's deposition may be the most valuable discovery tool available. This is particularly true in employment discrimination cases. There are many effective ways to take a deposition, and not every litigator is suited to the same style. Regardless of style, however, one rule remains constant: how the litigator prepares for and conducts the employment discrimination plaintiff's deposition will directly impact its value in the litigation. This article outlines some basic rules to follow to increase this deposition's value.

The earlier the better
Most agree that the plaintiff's deposition should be taken early in the litigation. The million dollar question is, should the plaintiff's deposition be taken before or after written discovery has been served and responded to? There are vastly different opinions on this question, and the answer may depend on your particular case.

If you are going to take written discovery first, you should serve it right away, so as not to delay taking the deposition. Another option involves noticing the deposition at least thirty days in advance and accompanying the notice with a discovery request. By doing this, you will obtain some, if not all, of the requested documents and information prior to the deposition. In the alternative, if you don't receive the requested documents, you can hold the deposition open, subject to your receiving them later.

Remember your goals
In general commercial litigation, litigators primarily use depositions as a fact-finding tool. In employment discrimination cases, discovery is a secondary objective. Your primary objective is to obtain the information necessary to prevail on a motion for summary judgment. You have to ask the key questions, box the plaintiff in, and close all the loops. To that end, at certain points in the deposition, you may want to summarize the plaintiff's testimony, and ask the deponent to confirm that you have accurately summarized his or her statements.

Employment plaintiffs' depositions oftentimes can be extremely difficult - particularly if you have pro se plaintiff. Don't get frustrated, and don't give up. Even if the testimony does not start out entirely favorable, that can change over the course of the deposition. Of course, even if the deposition is not going well (for summary judgment purposes), you still need to develop the record, exploring all of the facts and potential issues.

Take control
There are many different styles or approaches to taking a deposition. Some litigators take the "nice" approach, befriending the deponent, and hoping to lure him or her into telling them everything. They believe that a friendly, almost sympathetic tone works better to relax the deponent, particularly in employment discrimination cases. Others are aggressive, looking to make the deponent nervous, and catch them off guard.

Regardless of which style you choose, you need to take control of the deposition - and stay in control. Avoid trying to establish total dominance over the witness. Also avoid being too friendly. The goal is to find something in between these two extremes: be firm yet polite.

As the deposition wears on, the deponent may start getting tired or frustrated. He or she may become argumentative, or start rambling about what he or she thinks is important to the case. Your job is to keep the deponent focused. You may need to remind him or her of the importance of the deposition, without being condescending or argumentative. If your approach is not working, you may want to alter it.

Taking control of the deposition also includes taking control of hostile opposing counsel. In a perfect world, opposing counsel will behave themselves and stick to the rules. However, more often than not, opposing counsel will try to disrupt the flow of your questions by asserting lengthy objections, coaching the witness, or just being rude to you. Do not let opposing counsel get away with these tactics. Advise counsel that their behavior is inappropriate, and note their non-verbal conduct on the record. If their behavior continues, suspend the deposition, and seek an order from the court.

Be prepared
The employment discrimination plaintiff's deposition is the cornerstone of the case. Do not treat it lightly. Whether your outline includes areas of inquiry or details specific questions, be certain that it covers all of the necessary issues and each of the facts of the case. For every area of questioning, make sure you cover the "who, what, when, where, how and why."

If you do use a specific outline, remember that it is not a script. Actively listen to a deponent and follow-up on the responses. If you are too concerned about sticking to your script, you are going to miss some facts.

Being prepared also includes allowing yourself enough time before the deposition to mentally "warm up." Before running into the deposition room, take a few minutes to think about the purpose of the deposition, think about the deponent, and visualize the big picture - and think about this throughout the deposition as well. Don't lose the forest for the trees.

Know the law
Along the same lines of being prepared, it is crucial in employment discrimination cases to know the law before you depose the witness. For example, if your case involves sexual harassment, you need to know and understand the two different types of sexual harassment, and what the standards of proof are. Or, in a Title VII case, you need to know the difference between a disparate treatment and disparate impact claim, and the legal framework that applies to each.

Remember, the goal for a plaintiff's deposition is to tee up the case for summary judgment. If you don't know the law going into the deposition, you are less likely to get the information necessary to accomplish this goal.

Resources

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About the Author

Ms. Ciccarelli is an attorney with the Phoenix office of Greenberg Traurig, LLP. She focuses her practice in the areas of labor and employment law.

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