One of the biggest mistakes you can make in defending the plaintiff’s deposition is failing to aggressively defend the plaintiff. An aggressive defense does not mean acting in a rude, obnoxious, or unprofessional manner. Rather, it simply means conducting one’s self in a polite but firm manner to protect the plaintiff from improper defense tactics and from the plaintiff’s failure to give his best testimony. See §6:244 (Defending Plaintiff at Deposition).
Be on guard for several improper defense tactics, including intimidation, inaccurate summaries of plaintiff’s testimony, and inappropriate questions. See §8:111.2.
Guard Against Improper Defense Tactics [§8:111.2]
Do Not Allow Plaintiff to Be Intimidated
Look for several improper defense tactics. The first tactic is pure and simple intimidation, and it manifests itself in many different forms—raising one’s voice, leaning across the conference room table or otherwise invading the plaintiff’s personal space, interrupting the plaintiff’s testimony, making belittling remarks about the plaintiff and/or the plaintiff’s testimony (e.g., questioning the plaintiff’s honesty or ability to recall). In response to this tactic, respectfully request that defense counsel cease. If defense counsel continues, consider making a statement similar to the following:
“[name of defense counsel], this is now the second time that you are [describe inappropriate conduct—e.g., raising your voice, invading my client’s personal space, making inappropriate personal attacks on my client]. If you continue to engage in this conduct, you will leave me with no choice but to suspend this deposition and bring this matter before the court.
If defense counsel persists, make an appropriate comment on the record, suspend the deposition and leave. Once you stand up to defense counsel’s bullying tactics (and the defendant realizes it is paying a lot of money without any results), defense counsel will behave more professionally.
Inaccurate Summary of Plaintiff’s Testimony
The second tactic occurs when defense counsel routinely attempt to summarize the plaintiff’s testimony, but in doing so distorts the testimony in a manner that favors the defense. In response to this tactic, object on the record (e.g., “Objection, misstates the witnesses prior testimony), and train the plaintiff to carefully parse through such summaries and only agree if the summary is completely accurate.
Asking Inappropriate Questions
The third tactic takes place when defense counsel asks plaintiff inappropriate questions—usually questions that are not relevant to the litigation and that unreasonably invade the plaintiff’s privacy rights. In response to such questions, you must carefully weigh the plaintiff’s privacy right against the amount of time and money that will be required to defend against a motion to compel.
Another type of inappropriate question is one that calls for a legal conclusion (e.g., “State all facts that support your belief that you were discriminated against because of your race,” or “Please identify each and every act of sexual harassment to which you allege you were subjected,” or “Why do you believe you were retaliated against”). Although there is not much authority discussing this issue, you may refuse to allow the plaintiff to answer deposition questions calling for a legal conclusion and, instead, state that the question is more appropriately asked in an interrogatory. Alternatively, you may simply object to the question on the ground that it calls for a legal conclusion.
Train plaintiff to respond to your objections
Coach the plaintiff ahead of time to make some comment about not being a lawyer following your objection that the question “calls for a legal conclusion.”
Confirm Plaintiff Is Physically Ready to Testify [§8:111.3]
With respect to protecting the plaintiff from himself, you must make sure that the plaintiff is giving his best testimony. This means asking the plaintiff prior to the deposition how he slept, how he feels, and whether he is ready to go forward with the deposition. In too many cases, plaintiff’s counsel neglect to ask these questions and the plaintiff ends up giving horrible testimony because he got no sleep the night before or has the flu or a severe headache. Do not allow the plaintiff to testify under these circumstances.
Contemporaneously Correct Errors and Omissions [§8:111.4]
Make sure the plaintiff contemporaneously addresses any mistakes, errors and/or omissions in his testimony. Many plaintiff’s attorneys believe that they can simply “correct” the testimony either when the plaintiff reviews his testimony or by way of a declaration submitted by the plaintiff in opposition to the defendant’s motion for summary judgment. In light of the case law expressly holding that a plaintiff cannot contradict his deposition testimony by way of a declaration submitted in opposition to a motion for summary judgment [see §8:91] and the fact that many judge’s and jurors will view the plaintiff’s deposition “corrections” suspiciously, this strategy is exceedingly risky. The better approach is to have the plaintiff address any mistakes, errors and omissions during the deposition.
There are two ways that this can be handled. First, during a break or at lunch, you can explain that the plaintiff made a mistake that must be corrected and then, upon resumption of the deposition, the plaintiff can say something to the effect of: “I need to add something to what I said earlier.” A slightly modified version of that approach (which appears less contrived) is to have the plaintiff wait for 15 or 20 minutes following the break to make the foregoing statement.
Second, you can ask the plaintiff questions at the end of the deposition in an effort to correct any earlier mistakes. The risk here is that the plaintiff may either give further bad testimony or open up a line of questioning that defense counsel had not thought of. Some plaintiff’s counsel ask questions at the end of the deposition to correct mistakes that may have been made and also to obtain testimony regarding facts that might be helpful defeating summary judgment. The benefits of having the plaintiff correct the record and/or add additional facts at the time of the deposition are two-fold. First, judges tend to give deposition testimony much more credibility than they do testimony by way of declaration. Second, defense counsel rarely, if ever, make evidentiary objections to deposition testimony, whereas as they invariably make every conceivable challenge to testimony by declaration.
Andrew H. Friedman, author of Litigating Employment Discrimination Cases has litigated virtually every type of employment case (on behalf of management, individual defendants, and plaintiffs) in the California state and federal courts. Mr. Friedman has also represented both employers and employees in administrative matters pending with numerous governmental agencies, including the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the California Division of Labor Standards Enforcement.