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Taking the Stand

An employment-law attorney offers HR executives some tips and best practices to consider before testifying in court. Testimony by HR professionals is often pivotal to the outcome of the case.

Wednesday, August 1, 2007
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In virtually every employment litigation, the case turns on decisions made by individuals in the company's human resource department. 

Given this pivotal role in the litigation, you, as the testifying witness for the human resource department, will undoubtedly be subjected to rigorous cross examination by plaintiff's counsel. In fact, his or her main goal will be to make you look incompetent, untrustworthy or worse. 

Fortunately, this result is far from inevitable, if you follow the sound advice of counsel, together with guidelines below for giving testimony at trial in employment litigation.

Keep Your Guard Up. Remember this is not a casual conversation. The human resource representative is usually one of the key decision-makers in discharge cases as well as cases that challenge the application of company policies concerning leaves of absences, requests for reasonable accommodation and the like.

Because of your role, each word of your testimony will be scrutinized by the court, the jury and plaintiff's counsel. 

While the lesson may be nothing more than common sense, it bears repeating: listen carefully to the question asked, and think carefully before you give any answer, as it may have a significant impact on the jury's impression of you.

Be Truthful. While such advice may seem obvious to a seasoned human resource executive, there are occasions when managers could have prepared better performance evaluations or coached or guided an employee in a more effective manner. 

Don't make excuses for actions that may not be ideal but were not discriminatory or any way violative of any federal, state or local law. 

It's appropriate and sometimes effective to be candid about weak managers, where a supervisor could have and should have done a better job in evaluating a particular employee. Failure to provide a more complete evaluation (or prepare any evaluation at all) does not amount to employment discrimination or wrongful discharge. 

Your candor in those circumstances may very well affect the jury's impression of your employer's action in taking particular adverse actions against an employee.

Don't Attempt To Tell The Whole Story. When testifying in court, you will be asked on direct examinations (by the company's attorney) specific questions about the events surrounding the various employment actions affecting the plaintiff (former employee). 

Your employer's counsel will lead you carefully through the chronology and details of the particular action at stake (i.e., date of hire, date of promotion, termination or other adverse employment action). Follow counsel's lead. 

On cross-examination, you should answer questions narrowly and not assume any information not specifically asked to you by plaintiff's counsel. While your testimony may be important to the overall case, you are only one witness among several presenting the company's defense. 

Stay focused on the facts that you are familiar with.

Know Your Company's Policies Cold.  In an attempt to discredit your proficiency as a human resource professional, counsel may try to show that you lack knowledge about important legal concepts and the minute details of relevant company policies.

For example, in a case where a plaintiff claims he was not reinstated to an equivalent position after returning from a protected leave under the Family Medical Leave Act, you may be asked to describe your understanding of employee reinstatement rights and to discuss the various factors that make two positions "equivalent" under your company's policies.

If you are less than definitive in your response, the jury may believe that you do not know how to apply the company's own policies or that you misapplied them in the plaintiff's case. Do not fall into this trap. 

It goes without saying that you should know these policies inside out, and be able to testify knowledgeably about them at the time of trial. 

Only Answer Questions You Understand. Plaintiff's counsel will make every effort to ask confusing questions to trip you up and make you look bad. However, if you genuinely do not understand a question, chances are good that it is misleading, imprecise or both. 

Do not answer questions that you do not understand. Instead, if you are unsure about a particular question, politely state, "Would you please restate that question? I'm not sure I understand it." 

There is nothing wrong with asking plaintiff's counsel to restate a question in a way in which you can understand it. It will also give you the opportunity to reflect on the question asked to you so you can give a complete and accurate answer.

Keep Your Cool. By now you should understand the goal of plaintiff's counsel is to rattle you. Do not let him or her succeed. 

Even if counsel questions your credibility, veracity, skills or experience, never argue or take issue with opposing counsel. You will have the opportunity to explain or clarify your answers on redirect, when the company's lawyer will question you. Until then, keep your cool.

Don't Let Opposing Counsel Put Words In Your Mouth. A common tactic of plaintiff's counsel is to use sentences that start as follows: "Isn't it true that" or "Is it fair to say." 

Unless you recall specifically saying something, your answer to that is "No, that is not the case," "No, that is not true" or "No, I did not previously state that." 

Some plaintiff's attorneys will hold what appears to be your transcript from your deposition and ask you questions along the lines of "Didn't you previously say . . . ." In such instances, it is important to testify only to your specific recollection of events, which leads to our next point.

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Never Say Never. Testifying in court is not a test of your memory. You are not obligated to remember every detail of another employee's performance or the details of performance evaluations.

Thus, do not use words like "never" or "always" unless they are precisely correct. It is better to state, "not that I remember" or "to the best of my knowledge" when that is more accurate. 

Be Natural and Straight Forward. We have all seen enough Law & Order shows to make us believe that trial testimony is supposed to be dramatic or over-the-top. While that might make for good television, it is not a particularly effective strategy for real-life trials. 

It is not necessary for you to "put on an act" or exaggerate. Speak in your own words.

There is no need to try to memorize your answers. Be straight forward and conversational so the jury will find your answers credible and see you as an honest and sincere individual.

Listen Carefully to Objections. On occasion, the company's attorney will object to questions asked by plaintiff's counsel, whether they require you to answer a question based on hearsay or some other improper reason. 

Listen carefully to the objection expressed by the company's attorney as there may be a message that is being conveyed to you to think carefully about the question being asked. 

For example, you may be asked in a cross-examination a question that may end in a subtle trap which the company's attorney fears you may have overlooked.

The company's attorney will then interpose an objection or make an inquiry in order to expose the trap or make certain you are fully appreciative of the importance of the question.

When an objection has been expressed by your attorney, the judge will determine whether the question was proper or not. If the judge instructs you to do so, you may answer the question; if the judge tells you not to answer, follow her instruction.

Keep in mind that the judge may also ask you questions to better understand the case. Answer the judge's questions as though you were being asked questions by your own attorney on direct examination, in a straight forward and candid fashion. 

More than any company witness, you, as the human resource representative, will be called upon to explain the procedures and policies that the company relied upon in taking the actions that are being challenged in court, and to discuss how those policies were applied with respect to the plaintiff. 

While testifying in court is never an easy process, these tips should help you maximize the likelihood that you will be viewed by the jury as a trustworthy witness -- enhancing both your own credibility and that of the company overall.

Michael Weber is a senior shareholder and founder of the New York office of Littler Mendelson, P.C., the nation's largest employment and labor law firm.  Weber can be reached at mweber@littler.com.

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