Law Offices of Lawrence J. Sherman, LLC


  Lawrence J. Sherman, Esq. 

Washington, D.C. and Maryland Labor and Employment Lawyer

Maryland Office and Fax: (301) 656-1068
Washington, D.C. Office: (202) 785-0384
5505 Connecticut Avenue, NW #261,
Washington, D.C. 20012
www. (Website)

Washington, D.C. & Maryland Labor and Employment Attorney

Preparing a Party for a Deposition in Employment Discrimination

There are two facets to preparing party to the litigation for a deposition. First, the client must understand the nature and purpose of the deposition process and be alerted to the most common pitfalls that apply to anyone being deposed. Second, the client must have an understanding what types of questions are likely to be asked during the deposition. These subjects include questions that are routinely asked in every deposition, questions that are tailored to employment cases, and questions that are tailored to the client’s particular case. In addition, the client needs to understand why adverse counsel will almost invariably ask these types of questions.

Viewed from the broadest perspective, the client must be prepared for an in-depth interview on the record about all facts and circumstances relating to the case. For example, it is quite common for a plaintiff to be asked about his/her claims of injury, damages and losses, matters of credibility, and any affirmative defenses relied on by the employer. In addition, the client is likely to be repeatedly asked about the existence of any documentation that supports any answer that he or she has provided previously (e.g., allegations in the Complaint, answers provided in discovery responses, e-mails or other documents provided in discovery, etc.).

Preparation in General

It is a good idea to review the basics with the client and to provide hard copy of materials for the client's further review and study. It is also relatively standard practice to talk about the theory of the case with the client to make sure that there is a shared understanding of the legal theory of the case. It is also necessary to explain and illustrate the limitations on the right of the client's counsel to limit the examination conducted by adverse counsel.

In addition, it is important to explain some of the basic traps that adverse counsel is likely to try to lay for the client. These traps include gaining admissions for use at trial and eliciting incorrect or overly simplistic answers to support a motion for summary judgment seeking dismissal of the case on legal grounds. These traps also include testimony that will play well when used at trial to impeach the client with prior inconsistent statements or admissions.

These pitfalls are easy to identify, but very hard to protect against during a deposition. The client must be shown examples through mock examination in order to understand the nature and significance of these and related ploys. During deposition preparation, the attorney or law clerk must walk a delicate line between properly preparing and scaring the witness. During this process, the client will ask questions as well as voice concerns about the questioning, deposition process, and substance of the litigation. The attorney or law clerk assigned to prepare the client must try to provide accurate and succinct answers. If there is any doubt concerning the answer, he or she should run the problem by the lead attorney responsible for trying the case.

Subjects That Commonly Arise in Employment Cases

Almost invariably, adverse counsel will spend an hour or more asking background questions probing the party's education, past employment, health, family and/or personal matters that generally relate to the client's ability to function on the job or otherwise. These questions are partly a fishing expedition and partly an effort to get to know the plaintiff better and look for stress points or weaknesses to probe during the remainder of the deposition or at trial.

It is very common for adverse counsel to ask questions about the details of all key factual allegations set forth in the Complaint and Answers to Interrogatories. The focus of this line of questioning will be to try to get the client to articulate specific examples or details that have not been previously provided and/or to reveal the existence of documents or witnesses. Every response becomes a springboard for additional questioning and probing.

The other common way to elicit information is for the adverse attorney to ask very broad and open-ended questions. These questions are far from innocuous. Incomplete answers can be used against the client at trial and/or in a motion for summary judgment. Once again, the counsel for the plaintiff is forced to do a delicate dance. It is necessary for the client to be responsive, but also to qualify his or her answer by reference to directing adverse counsel to the Complaint or any other body of documentary materials that provides a more complete account of events.

It is equally common for adverse counsel to ask questions concerning efforts to mitigate wage or pay losses by seeking suitable employment. These areas include plaintiff's efforts to find suitable employment, job retraining, etc. as well as any employment that the client has found in the interim. It is also common to ask a plaintiff to provide details and/or examples that support his or her claims for compensatory and/or punitive damages. These areas may include any medical and psychiatric treatment, specific evidence of emotional distress, and intimate matters relating to marriage, family problems, and/or sexual relations. These questions generally must be answered because the subject matter has been placed in issue by claims for compensatory damages based on emotional distress, career damage, loss of financial credit and standing, etc.

If the employer has raised affirmative defenses that are factual in nature, adverse counsel may question the client about these matters in order to establish the factual basis and/or documentary support for the defense and/or any information known to the client that may rebut any such affirmative defense(s). Adverse counsel may start with open-ended questions and then move to closed-ended questions to tie down the plaintiff or even try to force an admission or concession.

Adverse counsel often uses trick questions or throws curve balls during the deposition. These include facially simple questions that are extremely difficult for the client to answer, including the following:

  1. Why have you brought this suit?

  2. What do you expect to accomplish by filing this suit?

  3. What do you expect to recover from this suit?

  4. Describe the factual basis of your discrimination claim?

  5. Describe the factual basis of your retaliation claim?

  6. Describe the nature and extent of the emotional distress you claim to have suffered?

The purpose of these questions is to get a sound bite to quote in the employer’s motion for summary judgment and/or for use at trial to impeach the client by a contradiction or omission. The concept of impeachment must be explained, along with the adverse party's right to use a deposition as evidence in a case. Impeachment also includes matters of credibility, such as an exploration of alleged bad acts by the party even though this evidence is not likely to be admitted at trial.

While a deposition may involve an intellectually and often physically challenging experience for the client, it is not a form of legalized torture and a well-prepared client can fare well. It is not necessary or even wise for the client to use the deposition as an opportunity to persuade adverse counsel of the merit of his or her position. Rather, the primary focus should be on providing direct and responsive answers, qualified whenever and wherever necessary, so that the client comes across as a credible witness and decent human being.

The client must be encouraged to leave everything else to the lawyer defending the deposition. These matters include making necessary objections and initiating conferences with the witnesses on matters of privilege.  In addition, the attorney must decide whether and what extent he or she wishes to ask the client questions after adverse counsel is finished. The most common reasons to ask the client questions is to obtain critical sworn testimony needed to oppose summary judgment and/or to clear up confusion that will hurt the client at trial. It is advisable to go over with the client this process and discuss the potential subject areas as part of the preparation process.

Deposition practice has changed as the judicial climate has become more hostile, and courts and other tribunal are encouraging counsel for the employer to file summary judgment and in limine motions. The breakdown in civility by counsel has also spilled over to the deposition process. These and many other circumstances place a premium on preparation for this and all other depositions.