Continuing in my series of blog posts explaining the steps involved in pursuing a Wrongful Discharge Case, today I explain the discovery process.
When you file a lawsuit against your employer, or any lawsuit for that matter, one of the most important phases in the process is discovery. Discovery is a pretrial procedure by which one party gains information held by another, including facts, deeds, documents and other such things. The scope of material available for discovery is quite broad under both State and Federal civil rules.
The civil rules, especially the federal civil rules, are designed to encourage full disclosure of evidence and discourage surprise. For attorneys, the goal of discovery is to prepare for trial. No one should be going to trial without knowing all the facts of the case. A secondary goal of discovery is to prepare for a summary judgment motion. (Summary judgment will be explained in Step 6 in this series).
The discovery process includes the exchange of interrogatories and requests for production of documents. Interrogatories are written questions aimed at eliciting facts about the opposing party’s case. For example, in a wrongful discharge case, I always want to know who made the decision to terminate my client. Often, the person who informed my client of the decision is not the only one who was involved in the decision. Therefore, one of my interrogatories asks the employer to identify all individuals who had input in the termination decision. Then, I follow-up that question with a request for production of all documents considered in the course of making that decision. If the employer claims that my client was terminated due to poor performance, I would expect to receive documentation of the alleged poor performance.
Of course, attorneys who represent employers also take full advantage of the discovery process. One trend that has become quite popular among defense counsel these days is to request access to social media sites. Facebook can be a real mine field for plaintiffs. From the first day I meet with my clients, I tell them that their social media activity will be scrutinized. Anything they do or say on the web may be used against them.
Another tool in discovery is the Request for Admission. Requests for Admission are self-explanatory. They are written requests, asking the opposing party to admit certain facts which should not be in dispute. For example, if my client tells me that she always received good scores on her annual performance reviews; I might ask the employer to, “please admit that plaintiff always received a score of ‘meets expectations’ on her annual performance review.” In this way, we can avoid having to prove that my client was an effective employee, because it is already admitted.
Depositions are another part of the discovery process often, the most expensive part. Depositions are an opportunity for the attorney on one side of the case to take sworn testimony from the opposing party and their witnesses. I always want to depose the individuals who were identified as those who made the decision to terminate my client. Plaintiffs are almost always deposed. A deposition can make or break a case.
Whether conducted by me or opposing counsel, depositions are ALWAYS designed with a goal in mind. For me, the goal is to uncover the real reason my client was terminated and to elicit sufficient evidence to support our claims so that the case will not be dismissed on summary judgment. For defense counsel, the goal is to elicit facts that show my client does not have a case. Defense counsel wants to prove that the employer’s justification for terminating my client was not discriminatory or unlawful, but based upon a legitimate business justification. The employer’s attorney is laying the groundwork for a summary judgment motion so it is absolutely imperative that my client is prepared to testify at his/her deposition.
First and foremost, I tell my clients to tell the truth and don’t be evasive. If we have a solid case against the employer, there is no reason to hide any fact. One of the biggest mistakes that plaintiffs make is not listening to the question that has been asked. People get nervous when they are giving testimony. They are trying to stay one jump ahead of the attorney who is asking the question, but that is a mistake. Listening to the question is as important as answering it.
Stenographers are hired to record the testimony given during a deposition. Once the testimony is complete, they transcribe the testimony. This is where the cost comes in. Deposition transcripts can be very expensive depending upon the length of the testimony. It is not unusual to pay more than $700 for the transcript of a six hour deposition.
Also included in the discovery process are expert disclosures and depositions. Expert witnesses are hired to testify about various topics in a wrongful discharge case. For example, a vocational expert might testify about the Plaintiff’s ability to perform certain jobs or the availability of certain jobs in a defined geographic location. An economist might be hired to testify about economic damages. Experts are not cheap, but their testimony is often necessary to proving the elements of a claim. Both sides are required to reveal the identity of any expert witnesses and those witnesses are subject to being deposed before trial.
Once the discovery process is concluded, the parties will have a much clearer picture of the opposition’s case. Cases often settle after discovery is exchanged because both sides are better able to evaluate the value of a claim. If the case does not settle, both sides will begin gearing up for trial, including pre-trial motion practice. Pre-trial motions, including the summary judgment motion will be explained in Step 6 of this Series.