Preface
Below is a non attorney advice based on his (my) client’s being deposed by U.S. government attorneys during the EEOC hearing process.
“Agency” means U.S. federal government agencies. In discrimination cases which are pending at U.S. District Court, Agency is usually the “Defendant.” “You” here means the Complainant who filed a formal EEO complaint of discrimination at the federal EEO process or the Plaintiff in a civil action complaint filed at a U.S. District Court. If you are not represented by an attorney, you are a pro se (representing yourself) Plaintiff.
If you are being deposed, the opposing counsel (the agency attorney or the Defendant’s counsel) is questioning you on the case you filed against the agency/defendant, alleging discrimination.
Purpose of depositions
Know the reasons why the attorney wants to depose you:
To cherry pick on what you said (in the transcript) and present it to Judge for a summary judgment against you.
To demoralize you, to discourage you, to demean you (if the attorney is mean), and to humiliate you so that you will drop the case.
So, don’t take it personally. The opposing attorney will take any and all advantage against you—no matter who you are. For example, the attorney will take advantage of you for being a pro se Plaintiff/Complainant, for not knowing the rules of deposition (which is governed by the state in which the deposition is taken), for not knowing the protocols (i.e., you have the right to ask for reasonable number of breaks, to take lunch, not to go beyond 6-7 hours, right to stop if you are exhausted or ill, etc.)
Do’s & Don’ts
You will be asked in the beginning: “Are you taking any medication that will interfere with your ability to testify today?” You should be able to answer: No. Otherwise, you cannot go on further in the deposition.
You will be asked about the general background of your employment history. If it is too far back in your employment history, you may want to object to the Q’s. If it is personal, having nothing to do with your case or with your damage claims, you should also object.
Even if you had objected to the question, you still have to answer.
Do nat say anything “off the record.” Say everything you want to say “on the record” (while the Court Reporter is recording you).
Make your Report of Investigation (ROI) accessible, as pages from it will be referenced to and be questioned on. Attorney may introduce Deposition Exhibits to question you on. Examine the document carefully before you answer any questions on it. Make sure that it is authenticated: who authored it, when, whether it was issued to you or it has a reason to be issued to you, etc. You should not answer any questions that you cannot answer.
Don’t be pressured to answer, if you don’t know the answer.
“I don’t know” is a good answer, if it is true.
Don’t be evasive by saying: “I don’t know.” Say as much as you know or remember.
Don’t make things up. They will come back to bit you.
If you cannot remember, try to remember. If you still cannot, ask if you can consult a document to refresh your memory. Only if you are given a permission to look up a document, you may do so.
You cannot bring documents prepared in advance from which to testify.
You cannot have a document in front of you when you testify, unless the document is put in front of you by the attorney.
The deposing attorney will usually go down the list of the “accepted” claims/allegations (or your Court Complaint) and ask for clarifying Q’s or Q’s for elaboration such as dates, names, etc..
Statements like “… about 6 months after I return to work…” will invite the following question: “When did you return to work?” Try to use the actual date or month. Always add the year to the date.
When a name is first introduced in the testimony, always say the full name and the job title (if any).
Most questions are factual questions. Stay with facts.
“Why” questions call for explanations. All other questions require factual answers. Facts have time or date, names, and places. Try to provide those details. The more details the more factual and the more credible.
Words like “harassment,” “discrimination,” “unlawful” are conclusory words/statements. They are not factual. One needs factual basis to arrive at such conclusions. It is Judge’s job to make such conclusions based on the finding of facts.
Do not say more than what is asked. Do not elaborate, unless asked to do so. You are not there to explain your case to the attorney.
The more you say, the more Q’s you will invite, the longer the deposition will be as result. You want to get out of there as soon as possible. The deposition does not serve you as much as it serves the attorney’s purpose.
Most questions can be dealt with by simply answering “Yes” or “No.” Let the attorney pose you the follow up questions.
Do not volunteer information beyond what is asked or when not asked. The extra information will be used against you.
You don’t get to make a speech. Don’t argue your case. Judge is not there to hear you.
Don’t try to convince the attorney. It is his or her job to defend his client (i.e., Agency/Defendant). He will not be convinced, no matter what you say or how strong your evidence is.
You cannot say anything, unless you are asked. That means you will have no chance to make speeches, argue your case, or present your evidence.
You can only answer what is asked. Listen to the question carefully and answer only what is asked. (This is easier said than done, by the way.)
If a question is not pending, you cannot say anything on the record (except for circumstances of intimidation or manipulation described below). If you tried, attorney will stop you.
Do not argue with attorney about your case. You will never win or the attorney will never admit to the truth of what you say.
The deposition is not for you to establish or argue your case. Attorney won’t allow you to do that in the deposition he or she organized. Attorney will avoid questions that will provide you with the opportunity to prove your case. So, don’t be surprised when the most important questions are not asked. It is by design.
Your disposition testimony can be supplemented, revised, or re-phrased by your subsequent affidavit. Affidavit is any written statement you make with the following ending: “I hereby declare under the penalty of perjury that the above is true.” [Signed and Dated.]. It should have the identifier, such as your name, address, email, the case caption, and your relation to the case (such as “I am Complainant in the case referenced above.”).
The judge is not there to listen to your testimony.
Unless your testimony is transcribed and presented to the judge as an exhibit, the judge will never know about it.
Attorney will obtain the transcript of your deposition testimony and will present it selectively, cutting out parts that favor you and hurt the agency. Attorney will attach the truncated transcript to his or her Motion for Summary Judgment (MSJ) and will move to dismiss the case without hearing. That is the whole purpose of having you deposed, in addition to the purpose of harassing you.
Do not let the atty cut you off, especially when your testimony is important to your case and hurts the agency. If you are cut off by atty, immediately interrupted him/her by saying: “I’m not done with my answer” or “I’m being cut off,” etc. You can interrupt the attorney if and when the attorney interrupted you. Of course, he will deny that he interrupted you but will say that you are interrupting him. In that case, you want to set the record straight—on the record—and recount what was said and who interrupted who, etc.. If the attorney wants to go off the record and continue to argue with you, you stop talking and say: “I won’t say anything unless I am on record.” And do say on record what needed to be said.
Be careful about the long Q’s. If you say “Yes” to that, the whole question is accepted as your affirmative statement.
If any part of the Q is incorrect, your answer to it should be “No.” And immediately correct the part in the question that is false.
If the Q is too long or you don’t FULLY understand or if you are in doubt, you can either say “No” as an answer or ask to re-phrase. Or say: “I don’t understand?” Or “What do you mean by ….”
You are entitled to change, revise, re-articulate on record your earlier testimony at any time during the deposition, as long as deposition is not complete.
If you are represented, your representative is entitled to cross examine you to clarify, emphasize, or correct your earlier testimony.
You cannot look at any docs or notes to testify. If you do, atty will ask you to provide a copy to him or her. Atty is entitled to it.
If you cannot remember, try to remember. If you still cannot, ask if you can review a doc that will refresh your memory. Doc review is allowed only for the purpose of refreshing your memory.
Less is better than more in answering the questions. A shorter deposition is better than a longer deposition.
Attorney will present docs he or she want to pose questions on. Examine the doc carefully before you answer any questions, make sure that it is something you have seen before, that it is not altered, it is created during the relevant time frame and not made up after you had filed your formal EEO complaint. So, always look at the author, signature, date, the receiver—to make sure it is authentic. Identifying such information on the doc is called “identification” of the doc. If attorney does not identify the doc shown to you, you should identify it for the record.
So, when atty ask you to identify the doc, you should say what it is (using the title written on the doc, if any; or give a generic name such as “email” “performance evaluation” etc.), the date it is created or signed, the author, and the receiver.
Attorney may present a doc of his own choosing and mark it as Deposition Exhibit, after it is “identified” for the record.
If it is not an authentic “record” (i.e. a pre-existing docs created by you or your supervisor), you can object by stating: “This is created in year 2022—2 years after my separation from the Agency,” etc. Or, “I’ve never seen this doc.” “I don’t know the person who wrote the doc.” Or, “He never gave me this doc.” “I never signed this doc or acknowledged receipt.” Etc.
In one true case that eventually came to me, Agency forged my client’s signature on a proposed termination notice she never received and introduced it as evidence at the EEOC hearing. My client answered ‘Yes’ without checking the signature, when she was asked: “Is this your signature?” Never make such a mistake.
When the attorney misbehaves:
You can protest on record against attorney’s inappropriate behavior such as witness tempering, intimidation, manipulation of testimony, mischaracterization of your testimony, etc., as described below. Let attorney know that you are making record of your protest against his misbehaviors by describing on record what he is doing to you such as intimidation, harassment, mischaracterization, shouting, angrily staring at you, raising his finger at you, etc.
Some attorneys will do many things with voice or body gestures to intimidate you. These are not recordable by the court reporter. That’s why some do engage in these inappropriate behaviors—not all but some of those attorneys who are bad, mean, and very unprofessional. There are too many of those.
If you are intimidated during the deposition, say so by saying something like: “Why are you raising your voice?” “I feel intimidated.” “Don’t shout.” “Why are you staring at me like a wolf preying on the prey.” Etc. (The last one actually happened to my client who had PTSD and the attorney knew her diagnosis and took advantage of it.)
Say and describe attorney’s unprofessional behaviors on the record. That will stop the inappropriate behaviors.