Depositions in the age of summary judgment: changes in employment discrimination litigation call for a different approach to depositions. Buck conventional wisdom and use these techniques to ensure victory before you reach the courtroom.

The most dramatic change in employment discrimination litigation of the past two decades is the federal judiciary's increased use of summary judgment. (1) Employment lawyers must embrace the reality that their cases are won or lost at the conference room table during depositions, and not in the courtroom before a jury.

The old ways of deposition-taking are generally ineffective in today's employment litigation. Those methods still work in other types of cases where genuine issues of material fact mandate a trial, as when two drivers who collided both claim to have had a green light.

But most employment cases rise or fall on inferences to be drawn from the facts. To take effective depositions in employment cases, you need to master new rules that probably differ greatly from those you learned in law school or continuing legal education programs.

Commentators have offered several theories to explain the surge in summary judgments in employment discrimination cases. (2) They include overcrowded dockets, courts' generalized hostility to discrimination claims, and even willful defiance of Supreme Court rulings that appear to render summary judgment less likely in these eases.

In St. Mary's Honor Center v. Hicks (3), the Court held that if the fact finder does not believe the employer's articulated reason for an adverse employment action, the disbelief alone may allow a finding of discrimination. This ruling was rendered even more explicit in Reeves v. Sanderson Plumbing Products, Inc. (4) These holdings suggest that to withstand summary judgment, a plaintiff need only have evidence from which a jury could conclude that the employer's stated reason is untrue--not a very onerous burden.

Despite these rulings, the federal district courts apparently continue to rely on an early trilogy of High Court decisions that laid the groundwork for more summary judgments and fewer trials? The trilogy shifted the standard from "genuine issues of material fact" to "substantial evidence that would sustain a reasonable jury verdict." The Court emphasized that the plaintiff's evidence must be viewed "through the prism of the substantive evidentiary burden." (6)

There is a substantial difference between identifying contested issues of material fact and anticipating how a reasonable jury would decide a claim. The anticipation is particularly subjective because of discrimination law's heavy reliance on drawing inferences from facts that, standing alone, prove little. In essence, under the standard established in the trilogy; the judge makes his or her own determination of what inferences, if any, should be drawn from a set of facts and then determines whether a jury would be "unreasonable" to disagree.

Preparing clients for deposition

It used to make sense for employment lawyers to conduct discovery in the conventional way, seeking to learn what evidence our opponents had and taking depositions to find out everything the deponent had to say.

Now, while we still need to "discover" what each deponent knows, we need to aggressively cross-examine deponents as we might at trial, scoring as many points--and creating as many pages of persuasive deposition transcript attachments to our briefs--as we possibly can.

The plaintiff must also "score points" at deposition. Make sure your client understands the new rules. Some may have never even heard of summary judgment. They may be shocked and confused to learn that a judge might throw out the case without a trial. They may even dismiss the notion as unlikely. These clients arrive at your office believing firmly that the Constitution guarantees them their "day in court." These reactions are understandable.

So how should you explain all this to clients? Skip the discussion about "genuine issues of material tact." Face it: That is no longer the standard. Instead, try something like this:

   Most people who have never brought an
   employment case believe they are entitled
   to a trial by jury and that nothing the defense
   does can change that. But the dockets
   of federal judges have become extremely
   overcrowded in recent years. Rather than
   spending a week presiding over each case at
   a trial, most judges find it more efficient to
   dismiss as many cases as they can to cut that
   backlog and reduce the number of trials
   they must conduct.

   After we have finished the discovery in
   this case, the defense will make a motion for
   summary judgement. Think of it as a test--a
   "qualifying exam" for our case. The defense
   will write a brief and give the judge all
   the favorable evidence it has to convince the
   judge that our case is not strong enough to
   go to trial. We need to respond to that by, in
   effect, "trying" our case on paper. If we convince
   the judge that the case is very strong,
   we will be entitled to a trial. But only if our
   case passes this "exam" will we have the right
   to proceed to trial.

Too many lawyers adhere to the conventional wisdom on preparing a client for deposition. They advise, "Don't talk too much, don't volunteer anything, don't argue with opposing counsel." While those are still valuable tips, plaintiff lawyers have begun to realize that in some situations, the plaintiff should talk a great deal, volunteer a lot of information, and even argue with defense counsel. Because defense counsel is trying to "make pages" to attach to the summary judgment motion, he or she may have little interest in eliciting all the relevant information the plaintiff has.

For instance, defense counsel may ask questions such as, "What proof do you have of age discrimination?"--usually hoping for a short, insubstantial response. The plaintiff should be prepared to deliver a lengthy, detailed answer, citing each fact from which an inference could be drawn that supports a prima facie case or a finding that the employer's stated reason for its action is a pretext. While delivering this answer, the plaintiff should refuse to be interrupted or edited by defense counsel. This requires that the plaintiff understand how the burdens of proof are allocated in discrimination cases and how courts analyze these claims. (7)

Similarly, the plaintiff's deposition testimony about any suffering he or she experienced because of the employer's treatment must be lengthy and de tailed, even if the deposing attorney resists.

Deposing decision-makers

Use precisely phrased questions. Always depose decision-makers with the same goal: creating pages of deposition transcript to attach to a summary judgment response. Because you are, in effect, "writing" transcript pages through your questioning, you should write out each question in advance, even adding follow-up questions depending on whether the answer is "Yes," "No," "I don't know," or "I don't remember."

Invariably, you will deviate from these scripted questions as the deposition proceeds. But writing out your questions in advance ensures that you will not overlook any essential area of inquiry and, more important, that you phrase key questions precisely to carry the maximum impact when attached to your summary judgment response.

Have all potentially relevant documents in hand. Resist the impulse to schedule and take a decision-maker's deposition before yon have all the documents you sought in discovery, as well as verified, detailed interrogatory answers. Use every potentially relevant document at the deposition. Have several premarked copies of each anticipated exhibit. Avoid the useless ritual of interrupting the deposition while the court reporter marks each exhibit. This delay only benefits the defense by slowing down questioning and giving the witness time to think of good answers and chat with defense counsel.

Some plaintiff attorneys are overly concerned with the order in which plaintiff and defendant depositions are taken. If defense counsel insists on deposing the plaintiff first, allow it unless you feel strongly that it would compromise your case. I usually find that defense counsel deposes the plaintiff before truly understanding which issues and evidence the plaintiff will emphasize.

Neutralize defense counsel during deposition. You cannot take an effective deposition while you're arguing with the deponent's attorney. Too often, the deposing attorney stops questioning the deponent to engage in lengthy debate with the defending attorney about the propriety of questions, the general issues, or the deposing attorney's conduct.

To avoid this mistake, imagine that you're holding a remote control device with a "mute" button that lets you block all objections and other distractions by opposing counsel. Look at, and speak to, the deponent only. The only useful response to a defense objection is to say, while looking directly at the deponent, "Do you understand the question ?" The only useful response to a second comment by opposing counsel regarding the same question is, "Are you instructing your client not to answer?"

Taking all effective deposition requires you to be totally focused on your goals. Imagine a pro golfer trying to sink a putt, but instead of concentrating on the task at hand, he or she stops to shout insults back at a heckler bent on creating a distraction. It makes just as little sense for a lawyer to do so at a deposition.

Make the deponent discuss disputed facts. There is no better way to show that your case includes genuine issues of material fact than to have defense witnesses say so. This is true even though the existence of disputed facts is less determinative of summary judgment than it formerly was; it is still persuasive to high-light disputed facts prominently, so be sure to bring them out.

Most deponents will not appreciate the significance of disputed facts, so it is not difficult to induce a discussion of them. Aim to create a transcript page with questions like these, which--along with the deponent's answers--can be quoted verbatim in your brief or supporting materials:

* "Do you understand that one of the plaintiff's allegations is that you refused to meet with him to discuss his performance appraisal?"

* "Are you denying that you refused to meet with the plaintiff to discuss his appraisal?"

* "That is a disputed fact between you and the plaintiff, isn't it?"

* "In effect, you are saying one thing and tie is saying another about whether you agreed to meet with him, and only one of those can be true--right?"

* "As a supervisor, do you feel that it is important to meet with employees to discuss their appraisals if they want to do that?"

* "Isn't it true that a discussion of dissatisfactions with performance may enable an employee to improve his or her job performance?"

* "And whether or not the plaintiff was performing his job adequately is an important issue in this case, isn't it?"

* "So the question of whether or not you refused to meet with the plaintiff to discuss his appraisal is both disputed and material to this case, isn't it?"

This line of questioning, due to its damaging nature, is likely to prompt intuitive objections from defense counsel. It is difficult to imagine a valid objection to such an obviously relevant inquiry, so don't let that deter you. Few defense attorneys would risk advising their clients not to answer.

Identifying witness type

Witnesses come in many varieties, but lawyers who take many depositions can generally place them in one of three categories: "Ms. I'm Under Oath," "Mr. Liar/Exaggerator," and "Mr. No Memory." As early as possible in the deposition, try to identify which type you are facing, and adjust your questioning technique accordingly.

Ms. I'm Under Oath. This witness believes that it is important to he honest (or that she might get in trouble if she's not). She does not take perjury lightly. Yet she still wants to protect her side's case.

Use questions that begin, "Well, isn't it possible that ...," "Would you grant me that ...," and "Can you deny here today, under oath, that...."

This type of witness tends to resist taking extreme positions, so ask questions like, "Did you have any doubts at all about your decision? Can you tell us about them?"

Mr. Liar/Exaggerator. Encourage and exploit this type's tendency to overstate. When you spot an obvious exaggeration, ask questions that encourage further exaggeration. Also, change topics frequently. Sometimes a good follow-up question is best saved for an hour or so later. It becomes difficult for a prevaricator to keep track of all the lies he is telling, and you can often elicit an inconsistent response the second time you touch on a topic. You can quote the responses side-by-side in your brief or attachments to highlight the inconsistency.

Perhaps the true value of Mr. Liar/Exaggerator, however, is that he will dispute virtually everything favorable to your client's claim, and his testimony is more likely to conflict with that of other, more honest deponents. This allows you to show inconsistencies, both his internal ones and those among witnesses, in your brief and attachments.

Mr. No Memory. This deponent believes that the best way to avoid trouble is simply to claim no recall of anything significant. You can break this pattern by asking questions that require narrative responses. This works best early in the deposition, when most deponents are still heeding their attorney's advice to provide short, concise answers and to not volunteer anything. To guide the deponent from terse, guarded responses, begin questions with phrases like, "Could you describe for us ...?" or "Could you tell us in more detail the ways in which ...?"

Another effective approach is to say, "Look, I have to confess that I am just not very knowledgeable about [your line of work, the way in which your department is organized, your style of management]. Could you explain it to me in a way that makes it easy for anyone to understand?"

Cover key topics

Many lawyers who talk with jurors after a trial are surprised at some of the issues the jurors considered important in reaching their verdict. If the true summary judgment standard is whether a reasonable jury could find for the plaintiff, it makes sense to exhaust every conceivable basis for a plaintiff verdict during decision-makers' depositions and to highlight them in your brief and attachments. Take these steps to explore often-overlooked areas of inquiry:

* Discuss the deponent's position on all direct evidence of the employer's discriminatory attitude and of any fact material to the case (for instance, years of good performance reviews).

* Make the deponent acknowledge all "good" facts about the plaintiff.

* Question the deponent regarding his or her management style. This can help you find comparable employees who were treated inconsistently.

* Establish the reporting lines and organizational structure of the company and all changes that were made to them over several years.

* Inquire aggressively into all "odd happenings," whether they seem

material to the case or not (for example, disciplining the plaintiff first thing in the morning on the day of her return from funeral leave).

* Fully explore all personnel actions taken concerning the plaintiff. Ask the deponent to identify comparable employees treated differently from the plaintiff, even if the witness was not directly involved in those actions.

* Examine the company's personnel policies and any departures from them in its treatment of the plaintiff Almost every company claims to have some version of an open-door policy, which typically invites employees to take complaints to their supervisors and promises quick action in resolving them. Many supervisors are annoyed when employees actually do complain or expect a fast resolution, and many companies do not want to spend time on employee complaints.

* Question the timing of the adverse decision. Was it made long after an arguably valid basis? Or was it made hastily? Why so long or short? Either one might seem suspicious, compared to the timing of similar adverse decisions made about other employees.

* Make the deponent acknowledge all discussions about the adverse decision that he or she participated in or was aware of.

* Explore all investigations into any workplace disputes involving tire plaintiff. For instance, did the supervisor speak with the plain tiff after learning of a dispute? If not, why not?

* Ask directly about the deponent's biases: "How do you feel about hiring women with young children for a job that frequently requires overtime or travel?" "What is your opinion of affirmative action?" "Do you have any social relationships with African-Americans? Describe your interactions with those friends."

These kinds of questions will often draw a relevance objection, but you can respond that intent to discriminate is the key issue in disparate-treatment cases. What could be more relevant than the decision-maker's own attitudes and lifestyle?

* Explore all Human Resources (HR) input into decisions affecting the plaintiff. HR people often feel obligations to both employees and management, a difficult position. You can bring out some of tiffs tension during deposition. Remember that discussions between HR staff and an in-house attorney are not necessarily privileged if the attorney acted partially as a decision-maker in the adverse employment actions.

* Ask the decision-maker to reveal his or her sources of knowledge and advice, both about discrimination laws generally and about decisions that specifically affected the plaintiff.

* Spot contradictions and inconsistencies. In addition to those among defense witnesses, look for inconsistencies among statements made to governing bodies like the Equal Employment Opportunity Commission (EEOC) or similar state or local antidiscrimination agencies, in the answer to the complaint and in interrogatory answers. Decision-makers often exaggerate before regulatory agencies, or offer reasons that counsel later persuades them to change. Statements made to investigatory bodies are frequently good sources of contradiction.

* Challenge the decision-maker if tire company's answer contains denials of obvious facts or baseless affirmative defenses.

* Go through the decision-maker's personnel-related history. Have the deponent describe any training he or she received in discrimination law and personnel management. Determine what the witness thinks is illegal. Ask the witness to identify and talk about employees in the protected category at issue whom he or she has supervised. How many employees has the decision-maker fired in this and other jobs?

Successful representation of employment discrimination plaintiffs in the era of summary judgment requires lawyers to rethink the approaches and methods that may have worked when summary judgment was reserved tot clearly insubstantial claims. Using these techniques in your next employment deposition may help stem the tide of paper dispositions of cases in which reasonable jurors could, and frequently would, return a verdict for the plaintiff.

RICHARD J. GONZALEZ is a practicing employment lawyer and a clinical professor at Chicago-Kent College of Law.

Putting the techniques to work

Here are two excerpts from actual deposition transcripts of defendant decision-makers, with names and other identifying information removed. In both cases, the court denied summary judgment and pointed in part to this testimony.

Proving differential treatment of a comparable employee

Q. You have testified that one of the reasons you did not consider transferring the plaintiff instead of firing her was that her last performance review ranked her as "unsatisfactory," correct?

A. Yes, that's correct.

Q. Who is John Jones?

A. Johnny is a sales rep who worked for me a few years back.

Q. For the record, John Jones is a man who worked as a sales rep under your supervision in the Chicago office from June 1991 until August 1996?

A. Yes, I believe that those dates are correct.

Q. Isn't it a fact that Mr. Jones was transferred from the Chicago office to the Schaumburg office in or about August 1996?

A. Yes, I believe that was the time.

Q. Isn't it true that you, as his supervisor, needed to approve that transfer?

A. Yes, that is company policy.

Q. I am handing you what is marked as Smith Deposition Exhibit #23.... Is this a copy of the performance appraisal of John Jones prepared and signed by you in July 1996?

A. It appears to be.

Q. And it shows, does it not, that Mr. Jones's last performance appraisal before his transfer ranked his performance as "unsatisfactory?"

A. Well ... that would appear to be what you are showing me.

Q. So it would be accurate to conclude that a sales rep can, in fact, be transferred even if his last performance review ranked him as "unsatisfactory," correct?

A. Well, I don't know that.... There may not be a hard-and-fast rule. I seem to recall that around that time, Johnny may have requested that transfer because he had bought a home in that area.

Q. Is that the company's policy? That a sales rep with an "unsatisfactory" review can be transferred if he or she is buying a home in another area?

A. No. No. It has nothing to do with ... I just meant that in John's case, the transfer seemed to make sense.

Q. But when the plaintiff asked you to approve a transfer to another region, that made no sense to yon?

A. I simply meant that there was another reason why the transfer made sense in John's case.

Q. Would it be accurate to conclude that you treated the plain tiff differently from the way you treated Mr. Jones with respect to approval of a transfer?

A. Well ... I guess, if you want to call that differently.

Outcome: In denying summary judgment, the judge relied, as proof of pretext, on the fact that Jones had been transferred while the plaintiff's transfer request was denied.

Managing the Liar/Exaggerator

Q. Now, you have indicated that you received complaints about the plaintiff from a variety of people, correct? A. Absolutely.

Q. During what period of time that you supervised the plaintiff did you hear such complaints? A. Constantly.

Q. Constantly? Do you mean for the entire 4 1/2-year period that you supervised him?

A. Basically, I always heard complaints about the plaintiff. Always. "I can't find him." "He's incompetent." You name it.

Q. Can you give me an idea how often you would hear a complaint about him during the time you supervised him?

A. It was constant.

Q. Can you give me your very best estimate?

Defense counsel: Objection. Asked and answered. He has already indicated that he cannot estimate [the] number of times. Move on to a new question, counselor.

Q. Can you tell me how many complaints about the plaintiff you would hear in a typical week?

A. Look, they were constant. I would say that at least 10 times a week I would hear something bad about him from somebody.

Q. OK, about 10 times a week. So that would be about 40 complaints a month?

A. Well, around there.

Q. And that would be about 520 complaints a year?

A. Well, I didn't count them.

Q. But I correctly heard you estimate

10 complaints per week for a 4 1/2-year period?

A. Well, more or less, to the best I can remember.

Q. So that would be over 2,000 complaints that you heard about the plaintiff during the time period that you supervised him?

Defense counsel: Objection. You are badgering the witness.

Q. Now of these 520 complaints per year that you would hear about the plaintiff, can you name everyone you heard make such a complaint?

A. There were so many. You want me to literally name ...

Q. Yes, name everyone who complained to you about the plaintiff.

A. Well ... [witnessstruggles to recall four names].

Q. Now, aside from the four individuals whose names you recall, how many other people complained to you about the plaintiff? I mean did these four complain repeatedly, or ...

A. No, no. I heard these complaints from everybody.

Q. And out of these 2,000-plus complaints about the plaintiff, you can recall just four individuals by name?

Outcome: In denying summary judgment, the judge said reasonable jurors might view the decision-maker's testimony about the number of complaints he had heard as so inherently incredible that the jury would find the defendant's articulated reason for firing the plaintiff to be pretextual.

Other rulings denying summary judgment in cases that I have tried have cited a decision-maker's lack of memory, contradictions between the defendant's articulated reason for an adverse action and statements made to the Equal Employment Opportunity Commission, and significant departures from announced corporate personnel policies or practices.

--RICHARD J. GONZALEZ

Notes

(1.) ROGER S. HAYDOCK ET AL., FUNDAMENTALS OF PRE-TRIAL LITIGATION 548-50 (5th ed. 2001).

(2.) See, e.g., Ann C. McGinley, Credulous Courts and the Tortured Trilog: The Improper Use of Summary judgment in Title VII and ADEA Cases, 34 B.C. L. REV. 203 (1993).

(3.) 509 U.S. 502 (1993).

(4.) 530 U.S. 133 (2000).

(5.) Anderson v. Liberty Lobby, Inc., 477 U.S. 242, (1986) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ; Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

(6.) Anderson, 477 U.S. 242, 254.

(7.) McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972); Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) ; Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).