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When executives get deposed, they must be ready. But the math doesn’t add up: You need from them what they have in short supply — time. They’ll look to you to leverage to the max what time they do have. So here are 10 tips to help you get them ready, fast and effectively. Tip No. 1: You can’t change people, but you can help people. My mother taught me this, and she was right. A number of years ago I was assisting a more experienced lawyer prep a director of human resources for her deposition in a discrimination case. He was putting her through a practice deposition, and she wasn’t giving him the answers he wanted. He lectured; she resisted. The anxiety in the room was palpable — hers and mine. Finally, she burst into tears. The lawyer tried to force his view on someone else. Life just doesn’t work that way. The best you can do is arm witnesses with techniques. If they feel empowered, they will be better witnesses, generating their own stories not desperately trying to mimic yours. Tip No. 2: Scope out the opposition. Executives look at litigation like a business deal. Just like in any business deal, they want to know who’s on the other side — what makes him tick, whether he’s in it for the money or is a “true believer,” what’s his style of practice. So scope out the other side, and spend time in deposition preparation talking about the lawyer on the other side of the table. It’s what’s expected. Tip No. 3: Remember three powerful words: “May I explain?” You see it on television all the time. A plaintiff’s lawyer paints a witness into a corner, the witness keeps blurting out, “It’s not that simple,” and tries to explain his answer. But in doing so, he looks argumentative and evasive, not like a truth-teller. Here’s a powerful escape technique. In preparation, tell the executive that when the plaintiff’s lawyer is trying to box him in and a short answer would be incomplete and misleading, simply say, “May I explain?” The executive is then in a no-lose position. If the lawyer says “yes,” then he elaborates on the answer; if the lawyer says “no,” then the lawyer looks like he’s the one trying to hide the ball. This technique is especially effective because executives believe in their heart of hearts that they can convince the employee’s lawyer to drop the suit. You can’t change that impulse, but you can channel it. DO A BASEBALL DRILL Tip No. 4: Handling loaded questions. Plaintiff’s lawyers in employment cases make headway by asking a loaded question with a slanted word embedded in it. Here’s an example. A manager is in charge of a department for three months and is then transferred to a different one. The manager voluntarily left the first assignment. But, the plaintiff’s lawyer wants to make the transfer sound ominous, so he asks: “So after three months, you were relieved [slant word embedded here] of your responsibilities in the first department, isn’t that correct?” Bad answer: “Yes.” Good answer: “I don’t agree with the word relieved. I voluntarily changed jobs.” We like to put together what we call a “baseball drill” during which we anticipate slanted words or characterizations and quiz the executive using the characterization. It’s sort of like hitting ground ball after ground ball in practice to the shortstop. The idea is to get executives to go on automatic pilot and ask themselves: “Do I agree or disagree with the characterization or slant? If I agree, I answer one way; if not, I answer another.” While we’re at it, here’s another. An employee is terminated in a reduction in force. Company policy provides that six factors are considered in deciding whom to include in the reduction, including seniority. Because of compelling operational reasons, seniority is looked at but makes no difference in the decision. Question: “So in deciding whether to let Mr. Smith go, the company ignored [slant word embedded here] his seniority, isn’t that right?” If you don’t go through the drill, you may get your manager answering, “I guess so.” When you go through the drill, the manager will generate an answer such as: “No. We looked at seniority but decided that other factors controlled the decision.” Tip No. 5: Have you been discriminated against, Ms. Executive? We thought we’d done everything right. We’d prepared the witness; gone through our drills with her; empowered her with “May I explain?” But, we forgot to do one thing; actually, it’s more accurate to say we hadn’t thought of it than forgotten it. The manager was black, and it was a race discrimination suit. The deposition was videotaped, and the first question hurled at her by the plaintiff’s lawyer was: “Ms. Jones, you’re black. This is a race discrimination lawsuit. Do you think that you ever have been discriminated against at the company?” Well, you can’t exactly call a bathroom break. But the witness (thank goodness) generated her own story, and it was better than we ever could have suggested: “There were times when things happened at the company that I was suspicious of or I thought odd in terms of promotions and job assignments. But I’ve always received satisfactory explanations when I’ve asked, and I have no problem with them.” End of story. Here’s the point: Always get your witnesses ready for this question if she is in a protected classification. It’s a sensitive question, but ask it or you’ll get caught flatfooted. Tip No. 6: Three harassing questions about sexual harassment. They’re coming, so be ready. First, the plaintiff’s lawyer shows the witness the company’s anti-harassment policy and asks: “Did the conduct of the harassing manager violate the company’s policy prohibiting harassment, and if not, why not?” On this one, we like to go with Mark Twain, “When in doubt, resort to the truth.” Second, the lawyer gives a hypothetical fact pattern and asks, “Do those facts violate the policy?” On this one, prepare the witness along the lines of the “c” word — “context.” As in “I need to know the context” or “I can’t answer unless I know more facts.” Third, plaintiff’s lawyer asks this softball, “Whose responsibility is it to enforce the policy against harassment?” (Hint: It’s everyone’s, as opposed to “Well, that’s human resources’ job.”) But couple it with this hardball: “Are you telling the jury that there is nothing else you wish you had investigated in determining the validity of my client’s complaint?” Get ready for both barrels. Tip No. 7: Don’t superimpose your story on the witness’ story. Let’s tell you a story. A male gay bar was sued for sex discrimination by a female employee, claiming she was constructively terminated because the bar preferred young males to older females. In preparation, relying on the idea that you never should deny the obvious, we counseled our client to acknowledge, if it came up, that gay men were the target market. The client said, “No, the bar is a neighborhood one, open to everyone.” We fought them on this, but they were insistent and it turned out to be 100 percent correct. Their deposition testimony was convincing because they generated it and believed in it. Don’t second-guess heartfelt beliefs. A CREDIBILITY ISSUE Tip No. 8: Liar, liar. They must teach this at plaintiff’s lawyer school, but it’s effective if the witness is not prepared. Let’s say there is a credibility issue: The plaintiff has one version of events, your witness another. Here’s the question: “Are you saying my client is lying?” We think the answer should be calibrated. If, for example, your witness saw the plaintiff stealing, the answer is “yes”; if, however, it’s simply a differing memory on a conversation, then think about preparing your witness to say, “That’s your word, not mine.” Figure out where on the continuum you expect the question to fall. Tip No. 9: It’s better to remind than to lecture. From time to time, a witness will suggest that, now that he thinks about it, his deposition testimony might vary from what he told you when the suit was filed. It happened to us. It was a he said/she said situation in a sexual harassment case. It would have been easy but disastrous to finger point, tell the witness he can’t do that and he’s unethical. Even if he backed off, our relationship would have turned antagonistic. But recalling Dr. Samuel Johnson’s wise admonishment “it’s better to remind than to lecture,” we wrote a letter to the witness, telling him we knew that he was frustrated with the long and lengthy legal process, that we shared these frustrations and that we knew his comments were borne of it. We finished by saying we were confident he never would put us in an ethical dilemma where we even would have to consider withdrawing. Message received. Tip No. 10: Ask personal questions in preparation or you’ll be sorry. Just like with the question on whether the executive was a victim of discrimination, you’ll need to ask other sensitive questions. Don’t shy away from doing so. Look at a claim under the Americans with Disabilities Act (ADA) for perceived discrimination; the employee is not ADA disabled, but wrongfully perceived to be and is discriminated against on that basis. As former President Jimmy Carter said about adultery, “It’s still a sin even if you only do it in your heart.” Same here. Let’s look at a plaintiff with XYZ syndrome. Here’s how the plaintiff’s lawyer questions the executive in a perceived disability case. “Have you or a family member ever suffered from XYZ?” Answer: “Why, yes, my sister has had XYZ for several years now.” Lawyer: “I’m sorry to hear that; it must not be easy for you.” Answer: “No, it’s not.” Lawyer: “Pretty tough to live day-in and day-out with XYZ, isn’t it?” Answer: “Sure is.” Lawyer: “And someone with XYZ syndrome has a hard time doing a lot of things that many of us take for granted. I guess you know that all too well?” Answer: “You can say that again.” A simple trap to avoid, but only if you prepare for it. Getting executives ready to testify is not easy. A good executive is always looking to the future. Employment litigation is always looking to the past. The key to a GC’s office meeting their needs is to make every minute of preparation count. Here’s a couple of resources to help you do that. “The Story Factor: Inspiration, Influence and Persuasion Through the Art of Storytelling,” by Annette Simmons. Executives, many with strong egos, will reject being pounded with lots of facts, but will respond to a story that makes your point. Or, check out “Sun Tzu: The Art of War for Managers,” by Gerald Michelson. Both are useful in helping in a tough task. Michael P. Maslanka is chairman of the labor and employment section at Godwin Gruber in Dallas and writes the Texas Employment Law Letter, which can be accessed at HRhero.com. Tonya L. Meier is a partner in the firm. She practices general commercial litigation and labor and employment law.

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