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

HR Magazine, May, 1999 by Timothy S. Bland

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.