Say the right thing - 10 golden rule for human resource professionals to follow when giving a deposition

Here are 10 golden rules for HR professionals to follow when giving a deposition.

Just ask them, and most human resource professionals will tell you that one of their greatest lob-related fears is the possibility of testifying in an employment discrimination lawsuit. But despite the prevalence of such suits today, the odds that an HR professional will have to do so are fairly small. Most discrimination suits are either settled before trial or dismissed without a trial upon the filing of a motion by defense counsel known as a "summary judgment motion." This motion may be granted if the court doesn't deem it necessary to hear testimony from witnesses in person.

It is far more likely that HR professionals will have to give their testimony in a deposition. A deposition is an out-of-court proceeding where the opposing attorney can question a witness under oath about the facts of the case. No judge is present, but the proceeding is transcribed by a court reporter. Depositions usually take place in a conference room at the office of the attorney asking the questions.

Skillful deposition testimony by an HR professional may encourage the plaintiff to settle out of court for a reasonable price - or it may lay the groundwork for defense counsel to file a strong summary judgment motion.

Unskillfully done, deposition testimony can virtually assure that the case will not be resolved without a trial and may even jeopardize the employer's chances to win the trial.

Because of the importance of deposition testimony, HR professionals should familiarize themselves with techniques that will enable them to skillfully give deposition testimony. Fortunately, knowledge of - and adherence to - the following basic rules of testifying will take HR professionals a long way in being able to do so.

No. 1: Remember That a Deposition Is Testimony

During the deposition, keep in mind that you are involved in a formal, on-the-record proceeding. Once your initial jitters have passed, you probably will feel like you are just having a conversation with the attorney taking your deposition. A skillful attorney will encourage you to feel this way by being nice, polite and perhaps even charming. But be assured that the attorney is only doing so because he or she knows that if you are relaxed, you are likely to be more open and forthcoming with information.

Don't forget that you are involved in an adversarial proceeding - and the charming lawyer asking the questions is trying to get a large monetary judgment against your company.

No. 2: Do Your Homework

Prior to the deposition, review any documents and other materials about which you may be questioned. "Review" in the context of preparation for a deposition means you must read and understand every single word on every single page of every single document.

At a minimum, as an HR professional, you can expect to be questioned extensively about the plaintiff's personnel files, with particular emphasis on the following items:

* Disciplinary documentation.

* Performance appraisals.

* Employment handbooks, policies and procedures.

* Any personal notes you may have made regarding the plaintiff.

No. 3: Don't Volunteer Information

The most important skill for a deposition witness is being able to refrain from volunteering information when answering questions. However, this is also the most difficult skill to master. In everyday communication we constantly "volunteer" information when responding to questions. If we did not do this, we would not be able to carry on a conversation that lasted more than a few sentences.

However, while this may be an important social skill in our everyday lives, it is dangerous conduct during a deposition. For every piece of information you volunteer, the lawyer will likely ask you a multitude of follow-up questions about it. Some of the most damaging testimony in a trial results from information volunteered during a deposition.

To avoid volunteering information, listen very carefully to the questions you are asked, and make sure you respond only to those questions.

Here's an example of information volunteered during a deposition in a sexual harassment case. The plaintiff's attorney is asking the HR manager a question about the alleged harasser:

Question: Did you ever hear Joe Smith make comments such as, "Women don't belong in this working environment"?

Answer: No, I never heard him say anything like that. I heard other people say things like that, but never him.

Instead of volunteering that information, the answer should have simply been "no."

Here's another example of volunteering information during a deposition:

Question: Did you ever hear Jane Doe make comments such as, "Older workers can't keep up with the fast pace we need"?

Answer: No, I never heard her say anything like that, but I know we talked about doing something to make sure we hired more older workers.

Again, the answer here should have been "no." In this example, the HR professional tried to be helpful and describe the organization as one that was interested in employing more older workers. However, the HR person has actually volunteered information that can be used against the company. The answer implies that the organization recognizes it appears to have discriminated in the hiring of older workers in the past and must do something to correct this.

Now that you have some examples of what volunteering is and how to avoid it, doing so sounds easy, right? Well, it isn't. It is a guarantee that you will volunteer at least some information during the deposition. But by concentrating on not doing so, you can keep volunteered information to a minimum.

Just keep reminding yourself that, in general, the shorter your answer, the better.

No. 4: Pause Before Answering

After you have been asked a question, you should pause for a few seconds before answering. This will accomplish two objectives. First, it will give your lawyer an opportunity to object to the question if there are legal grounds to do so. Second, it will give you the opportunity to think about the question and your response before stating it "on the record." This will help ensure that you give a correct, well-phrased answer.

No. 5: Don't Speculate

If you aren't sure that you know the answer to a question, don't be afraid to say "I don't know" or "I don't recall." Saying you don't know or don't recall will cut off the deposing attorney's line of questioning.

On the other hand, if you speculate about an answer, you will open up a new and possibly lengthy line of questioning - just as if you had volunteered information.

If you find yourself beginning your answers with statements such as, "I think," "I believe," "I guess" or "probably," then you are speculating. When you do so, you increase the possibility that you will say something damaging or untrue. Remember, you can only testify to what you know, not what you believe or speculate may have happened.

One primary area where witnesses tend to speculate is in testifying about the motivation behind someone else's actions. If the opposing attorney asks you why someone took a certain action, or what motivated them to do so, your response should be that you do not know. You have no way of knowing what truly motivated another person's actions, and any testimony by you about another's motivation would be sheer speculation.

No. 6: Tell the Truth

Always answer truthfully during the deposition, even if you are afraid your answer will make you look bad or harm your employer's case.

It's a near certainty that any harmful information will be discovered by the opposing attorney through some other means anyway. However, if you are less than honest during the deposition, opposing counsel will make you look like a liar in front of the jury at trial. If this happens, you will have zero credibility: The jury won't believe your testimony in its entirety and may even draw the conclusion that your dishonesty is evidence that the company discriminated against the plaintiff.

Once this happens, the case is over, and your employer will lose. So tell the truth and let your company's attorney worry about how to handle any damaging testimony that may come out. After all, that's what the attorney is paid to do.

In a related rule, if you are asked, it is perfectly acceptable to admit that you have met with your company's attorney to prepare for the deposition. There is nothing improper about having done so. If opposing counsel goes too far and asks you questions that invade the attorney-client privilege, your attorney will object and instruct you not to respond. If this happens, listen to your attorney's instructions, and do not respond.

No. 7: Make Sure You Understand the Question

For people who get paid to speak and write for a living, attorneys can ask some of the most confusing, convoluted questions. Never answer a question until you fully understand it, no matter how many times you may have to ask the questioning attorney to repeat or rephrase it.

Opposing counsel is not at the deposition to help you. You should not help them by answering the question you think they are asking, or by answering the question they should have asked. Doing so can only lead to trouble for you.

If you find yourself beginning an answer with a statement such as, "Well, if what you are asking is ..." or "I assume you really want to know ..." then you are violating this rule.

No. 8: Avoid Argumentative or Defensive Answers

If you get into an argument with opposing counsel during the deposition, you will lose. In the process, you will make yourself and your employer look bad.

Similarly, don't get defensive when you are questioned about your involvement in the matter. As an HR professional, it is likely that you played a significant role in whatever employment action led the plaintiff to sue your employer. Given this, you may feel like you are personally on trial and must justify and defend your every action. Don't. Instead, simply state what transpired, and relate the objective factual reasons why the relevant action was taken.

And, don't second-guess yourself. Whatever action was taken against the plaintiff was taken for reasons that made sense at the time. Just explain what your actions were, and do not respond to efforts by the attorney to make your actions look bad in hindsight.

If you get defensive and go overboard trying to justify your actions, you are more likely to say something that opposing counsel can use against you and your employer. Likewise, if you get defensive or argumentative during the deposition, it will send a signal to opposing counsel that he or she may get you to do the same in front of the jury. And juries do not consider defensiveness and argumentativeness positive qualities in a witness.

Just stick to testifying about objective facts.

No. 9: Handling Questions About Documents

As the custodians of their employers' personnel files, HR professionals undoubtedly will be questioned about numerous documents during a deposition. Any time opposing counsel hands you a document and asks you a question about it, carefully read the document in its entirety before answering, no matter how familiar you think you are with it. Unless you have memorized the document word for word in its entirety, you can be sure that there is something in it that you do not remember. Do not take any chances that the one thing that you cannot remember correctly will be the most critical element of the case. Read the document before answering any questions about it.

As a related rule, never let opposing counsel ask you a question about a document unless you have been given a copy of it. If opposing counsel attempts to do so, you should ask to see the document. Then, only after you have reviewed it, respond to any questions about it.

No 10: Correct Any Wrong Answers During the Deposition

If you realize during the deposition that a previous answer you gave was incorrect or incomplete, the time to correct it is before the deposition has concluded. Once you reach this realization, inform your attorney that you need to take a break.

During the break, let your attorney know what you think you misstated during the deposition. If your attorney agrees that what you said was incorrect, he or she will, at an appropriate time during the deposition, make a statement for the record that you need to correct an earlier answer. And then you will have the opportunity to do so.

Author's Note: This article should not be construed as legal advice or as pertaining to specific factual situations.

Timothy S. Bland, SPHR, is a management attorney with the Memphis, Tenn., office of Ford & Harrison LLP. He is the Legislative Chair of SHRM-Memphis.

COPYRIGHT 1999 Society for Human Resource Management
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