Deposing & examining the plaintiff

• Author: Tod F. Schleier
• Pages: 95-402

D&E: PLAINTIFF

2-1

CHAPTER 2

DEPOSING & EXAMINING THE PLAINTIFF

I. CASE SELECTION

A. The Right Plaintiff

§2:01 Human Factor Is Key to Success

§2:02 Danger Signals and Red Flags

B. The Right Case

§2:03 Client Chronology

§2:04 Trust Your Gut

II. PLAINTIFF’S DEPOSITION

A. Plaintiff’s Counsel’s Preparation

§2:05 Know Elements of Case and Defenses

§2:06 Gather and Review Documents

§2:07 Draft Deposition Outline

[§§2:08 – 2:09 Reserved]

B. Prepare Plaintiff for Deposition

§2:10 Ease Fears

§2:11 Deposition Dos and Don’ts

§2:12 Review Governing Law and Key Documents

§2:13 Mock Deposition

§2:14 Objections

C. Deposition Checklist

1. Background Questions

§2:15 Personal, Family Background

§2:16 Deposition Preparation

§2:17 Contacts With Defendant’s Employees

§2:18 Education

§2:19 Employment History

§2:20 Military Service

§2:21 Arrests, Convictions

§2:22 Other Lawsuits

§2:23 Employee Handbook—Emails

[§2:24 Reserved]

2. Employment History With Defendant

§2:25 Employment With Defendant

§2:26 Termination From Employment

§2:27 Constructive Discharge

3. Prerequisites to Suit

§2:28 Employer Policies, Procedures, Remedies

§2:29 EEOC Charge and Proceedings

D&E: PLAINTIFF

Deposing & Examining Employment Witnesses 2-2

4. Causes of Action

§2:30 Title VII Harassment and Discrimination Cases

§2:30.1 Sexual Orientation

§2:30.2 Discrimination—Disparate Treatment Cases

§2:30.3 Discrimination—Equal Pay Act Cases

§2:30.4 Discrimination—Title IX Cases

§2:31 ADA Accommodation Cases

§2:32 Retaliation Cases

§2:32.1 Sarbanes-Oxley

§2:32.2 False Claims Act

§2:33 ADEA Cases

§2:34 FMLA Cases

§2:35 42 U.S.C. §1983 Free Speech Claim

5. Defenses

§2:36 Retaliation Claim

§2:37 Fair Labor Standards Act Claims

§2:38 Theft of Trade Secrets Case

§2:38.1 The Defend Trade Secrets Act (DTSA)

§2:39 After-Acquired Evidence

§2:40 Same Actor Inference—ADEA Cases

§2:41 Stray Remarks—ADEA Cases

§2:42 Equal Opportunity Harasser

§2:43 Causation—Retaliation Cases

§2:44 Offers of Reinstatement

§2:45 Mitigation of Damages

§2:46 Independent Contractor or Employee

§2:47 Ministerial Exception

6. Damages

§2:48 Mental and Emotional Health Damages

§2:49 The “Procuring Cause” Doctrine in Failure to Pay Commission Cases

III. PREPARING PLAINTIFF FOR TRIAL

§2:50 Explain Trial Logistics

§2:51 Rehearse Substance of Plaintiff’s Testimony

§2:52 Review Protocol of Answering Questions

§2:53 Explain Handling of Exhibits

[§2:54 Reserved]

IV. DIRECT EXAMINATION STRATEGY AND GOVERNING PRINCIPLES

§2:55 Plaintiff’s Chance to Tell His Story

§2:56 Personalize Plaintiff Immediately

§2:57 Order of Presentation

§2:58 Form of Questions

§2:59 Draft Outline

[§§2:60 – 2:64 Reserved]

V. TRIAL EXAMINATIONS

A. ADEA, Breach of Contract Case

1. Direct Examination

§2:65 Key Facts

§2:66 Strategy

§2:67 Checklist

§2:68 Model Direct Examination

§2:68.1 Introduce and Personalize Plaintiff

D&E: PLAINTIFF

2-3 Deposing & Examining the Plaintiff

§2:68.2 Establish Existence of Employment Agreement

§2:68.3 Plaintiff Performed His Obligations Under the Agreement

§2:68.4 Employer Breached Agreement: Plaintiff Was

Summarily Terminated, Without Warning

§2:68.5 Address Alleged Performance Issues

§2:68.6 Plaintiff Received Positive Performance Reviews

§2:68.7 Plaintiff Received One Unsubstantiated Performance Warning

§2:68.8 Defendant Did Not Follow-Up With Plaintif f After Warning,

as Required by Progressive Discipline Protocol

§2:68.9 Employer Promoted Younger, Less Qualif‌ied Employee Over Plaintiff

§2:68.10 After His Termination, Plaintiff Was Replaced by Younger,

Less Qualif‌ied Individual

§2:68.11 Plaintiff Lays Foundation for Expert Testimony on Damages

§2:68.12 Plaintiff Made Diligent Efforts to Mitigate Damages

§2:68.13 Plaintiff’s Current Employment Is Not Substantially Similar

to His Former Employment

[§2:69 Reserved]

2. Cross-Examination

§2:70 Key Facts

§2:71 Strategy

§2:72 Angles of Attack

§2:73 Model Cross-Examination

§2:73.1 Plaintiff Was Member of Protected Class for Years Without Ever

Experiencing Age Discrimination at Employer

§2:73.2 Plaintiff Has No Evidence That Employer Discriminated Against Other

Employees in the Protected Class

§2:73.3 Plaintiff Did Not Actively Seek Promotion

§2:73.4 At the Time He Was Passed Over for Promotion, Plaintiff Did Not Suspect

or Allege Age Discrimination

§2:73.5 Plaintiff ’s Questionable Job Performance Was Good Cause

to Terminate His Contract

§2:73.6 Plaintiff Has Irrational Response to Common Practice of Peer Review

§2:73.7 Reprimand for Performance Issues Was Based

on Employer’s Legitimate Concern

§2:73.8 Plaintiff ’s Actions at Termination Meeting and Immediately

Thereafter Are Inconsistent With Allegations in Lawsuit

§2:73.9 Plaintiff Was At-Will Employee; No Contract Existed

§2:73.10 Plaintiff Did Not Make Reasonable and Diligent Efforts to Mitigate Damages

[§2:74 Reserved]

3. Summary Checklists

§2:75 Summary Checklist—ADEA

§2:76 Summary Checklist—Breach of Employment Contract

[§§2:77 – 2:79 Reserved]

B. Sexual Harassment Case—He Said, She Said

1. Direct Examination

§2:80 Common Facts

§2:81 Strategy

§2:82 Checklist

§2:83 Pattern Direct Examination Questions

§2:83.1 Background

§2:83.2 Pre-Hire Process

§2:83.3 Time of Hire

§2:83.4 Work-Space Conf‌iguration

§2:83.5 Harassment: Unwelcome Comments