REVIEW OF Deposing & Examining Employment Witnesses

You’re a fourth-year, defense-side associate and, at long last, here it is: your first opportunity to depose the plaintiff in an emotionally charged sexual harassment case.

You’ve got some strong defenses and some potentially compelling evidence that the plaintiff’s relationship with the “harassing” co-worker was, in fact, consensual. Ask the questions just the right way, set the plaintiff up with just the right predicate inquiries, and who knows—maybe an early favorable settlement or even, dare you contemplate it, your three favorite words: “Summary judgment granted.”

So you turn for sage, insightful advice to… a plaintiff’s lawyer?

Indeed you do, if that plaintiff’s lawyer is Tod Schleier, an elder statesman of the State Bar of Arizona who, much to the benefit of counsel on both sides of the divide, has written Deposing and Examining Employment Witnesses, a comprehensive guide through the evidentiary thicket.

In eight readable, neatly-organized chapters, this volume covers everything from the meat-and-potatoes of every employment case (deposing the plaintiff, the supervisor and the coworker), to the rarified air of the ever-expanding array of specialists (i.e. experts) who are more and more regularly becoming players in employment litigation (vocational experts, labor market analysts, statisticians, and the like).

For example, if you’re looking for a tutorial—or a refresher—on how to take or defend the deposition of the supervisor (or to prepare her for trial), Deposing and Examining Employment Witnesses starts you off with a handy checklist of de rigueur subject areas to be covered, from the obvious (plaintiff’s job performance) to the less apparent (treatment of similarly situated employees).

Beyond the sorts of inquiries that should be pursued regardless of the nature of the claims asserted, there are those more particularized queries that need be made in say, an Americans with Disabilities Act failure-to accommodate case, or a retaliation case. Schleier’s got these bases covered as well.

Preparing to depose or defend the human resources director in a discrimination lawsuit arising out of a reduction in force? Check. The alleged perpetrator in a sexual harassment case? Covered.

How developing or blunting this testimony differs, as between deposition and trial? That’s here as well, with numerous examples of effective direct and cross-examination, many of which Schleier draws from his extensive litigation experience.

Certainly, if trying or defending an employment case was cookbook-simple, application of these checklists and outlines to your case would turn even the dabbler into an instant expert. Of course, it’s just not that easy. There is, clichés be damned, no substitute for experience.

But if you don’t yet have the experience, you can, through this volume, gain the experience of a veteran of the employment litigation wars. This is the value-added offered by this volume, and it would truly be a mistake for a practitioner to focus his attention on the sound-bite checklists (which is not to diminish their usefulness) and ignore the sage advice.

Indeed, it is not just the mid-level associate, but as well the seasoned pro, who can draw helpful insights from the author’s observations. Sprinkled generously through these materials are practice pointers, cautionary notes, and technique tips, nicely integrated into the discussion so as not to break the flow of the point under discussion.

A great example: Say you’re considering challenging the admissibility of the opinion testimony of a human resources expert. Do you file a motion in limine, request a hearing under Federal Rule of Evidence 104, or wait until trial?

Perhaps, suggests Schleier, in this particular case, the pre-trial preemptive strike, which might otherwise be your first inclination, is the wrong move to make here. If you proceed precipitously, do you risk revealing too much of your trial strategy? Maybe, Schleier advises, holding your fire until trial might, in some instances, be the better play.

These are precisely the sorts of strategic decisions novice and experienced employment attorneys alike need to consider—and it is these nuggets that contribute significantly to the value of this work.

If there is any quibble with Deposing and Examining Employment Witnesses, and it truly is only a quibble, it is in the selection of sample forms. While this is not designed to be a “form book”—and thus there is no criticism from this corner on the grounds of incompleteness— nevertheless, the several forms chosen seem to be an odd lot (“Motion in Limine to Exclude Testimony of Labor Market Expert”; “Memorandum of Law re Negative Tax Consequences of Damages Award”), and perhaps future supplements and editions of the book will include sample motions and memos having somewhat broader utility.

All in all, irrespective or whether your employment practice is plaintiff- or defense oriented, this is a book (with accompanying CD) you need to have on your shelf. Indeed, speaking personally, as a defense attorney who, on occasion, has tangled with the estimable Schleier, I can only thank him for writing a book that will, I hope, help me to level our playing field just a bit.

Reprinted with permission from Maricopa Lawyer, July 2008 issue

Brochure for Deposing and Examining Employment Witnesses

Updated 01/10/11