Unless you have one of those rare workplace discrimination cases that can be proven through paperwork alone, you will need to rely on the testimony of your co-workers. This is especially true in cases which allege harassment or hostile work environment, in which evidence of specific statements or workplace incidents will often be essential. Unfortunately, co-workers are frequently reluctant participants in these types of cases, as they fear for their own job security should they give testimony which damages the employer. One way to help co-workers do the right thing is for you to attend their depositions.
Why Attending Co-Workers’ Depositions Helps
As a party to a lawsuit, you are entitled to be present for every deposition. Unfortunately, so is your employer. In many workplace discrimination cases, the employer will pick the most intimidating management-level employee as its representative at the depositions of your co-workers. The purpose of having this person in the room while your co-worker testifies is clearly one of intimidation, especially if the manager is the one against whom you expect the co-worker to give damaging testimony.
It is far harder for a co-worker to give a frank assessment of the manager’s statements and actions against you if that manager is in the room, staring him down. While your co-workers may not lie due to a manager’s presence (unfortunately, some will), they will almost certainly hedge their statements and try to downplay any misconduct as much as possible to avoid any potential retaliation.
You need to be present in the room to act as an opposing force to the employer’s intimidation. Your presence carries its own pressure on co-workers. It’s one thing for a co-worker to lie or hedge under oath with only your lawyer there to represent you. It’s a completely different thing for that co-worker to lie or hedge under oath when you, a person who has first-hand knowledge of the truth, are sitting in the room.
Co-Workers’ Depositions — Your Presence Alone is Enough
While you will not be able to speak at a co-worker’s deposition (aside from whispering occasionally to your lawyer), your presence there should be enough to inspire fear in a co-worker that you’ll stand up and call him a liar if he doesn’t testify truthfully. I don’t recommend making obvious faces or shifting around angrily should a co-worker lie during his deposition. Rather, I suggest that you simply pay attention, make occasional eye contact to let him know you’re listening, and should he lie, make a note of it and pass it to your lawyer. Letting a co-worker know that you are engaged and noting any deviations from the truth will be enough to discourage lies for all but the most brazen co-workers.
Attending Friendly Co-Workers’ Depositions is More Important
While you might think that it would be more important to attend the depositions of co-workers who may be hostile toward you, you would be wrong. These people are still likely to bend the truth to hurt your case, even with you there — they don’t care what you think. The people you want to focus on are those who may be “friendly” to your case, or at worst, neutral. These co-workers are more likely to be influenced by your presence.
There will always be co-workers willing to testify against you. There may not be anything you can do to avoid their negative testimony. You just need to be sure that the co-workers you expect to testify for you tell the truth, to counter the hostile co-workers’ testimony and help ensure that you have enough disputed factual issues to get your case to a jury. If you don’t attend their depositions, but the employer does, you risk them succumbing to the one-sided pressure and waffling in their support of your case.
Many workplace discrimination cases are lost due to lack of supporting testimony from co-workers. You should do all that you can to ensure that this doesn’t happen to you.