Your organization is faced with an employment dispute that looks like it is going to go to trial . . . or at least make it through the discovery and summary judgment phases. The parties intend to depose and call several employer- witnesses including those from the human resource department, the individual´s manager, the CEO, and the complainant´s co-workers. Your immediate reaction is to:

• Send them all, including yourself, on a paid sabbatical out of the country until the trial is over;

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• Prepare speeches for answering and addressing any questions; or

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• Contact counsel who will assist you in preparing the witnesses for the task based on the witnesses´ first-hand personal knowledge and the tools and documents prepared by them before and during the course of the litigation.

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Since answers a) and b) could land you in a heap of trouble, including serious violations of the federal evidence or procedure rules, keep reading for more appropriate ways to prepare witnesses in your organization, including yourself.

Who Are The Appropriate Witnesses?

The short answer to the question of "who are appropriate witnesses?" is "those with personal relevant knowledge of the situation." (see Fed. R. Evid. Rule 602; Fed. R. Civ. Proc. Rule 26(c) and corresponding State Rules). However, what constitutes personal and relevant information is often a major source of contention.

The mere fact that the organization is faced with an employment dispute typically implicates the human resource function to some extent. Further, the complainant´s direct supervisor or manager usually has some involvement based on his or her proximity to and oversight of the allegedly aggrieved person. What becomes more difficult to manage is the testimony of co-workers and others situated similarly to plaintiff. For example, in our scenario, counsel may attempt to depose other minorities to see if they have felt racial animus in the workplace despite not having personal knowledge of the graffiti in their co-worker´s work area. The employer´s attorney should make every effort to evaluate each witness for proper relevant, personal knowledge and consider the witness´ competency, bias, or other disqualifying trait.

Frequently in the course of litigation, opposing counsel attempts to haul the organization´s President and/or CEO into court to testify. The burden on a high-level corporate officer´s time has led many corporate attorneys to challenge the necessity of the officer´s testimony as lacking personal knowledge of the situation. The results of such challenges are mixed. For example, an ex-employee of the Ford Motor Company attempted to depose Lee Iacocca, as part of a wrongful termination case. The court refused to permit the deposition based on Mr. Iacocca´s lack of personal knowledge of the case and its finding that the burden of deposing a high-level corporate executive for every case involving the company outweighed the potential benefit of his deposition testimony. Others in the corporation were in a better position to testify as to the individual´s personal employment situation and the policies and procedures surrounding the situation. (Mulvey v. Chrysler Corp., 106 F.R.D. 364(D.R.I. 1985). On the other hand, even the President of the United States can be required to sit for a deposition if he has unique, personal and relevant knowledge. (see, e.g., Jones v. Clinton, 869 F. Supp. 690 (E.D. Ark. 1994)).

As the HR professional, be cognizant of who may have personal knowledge and who may be excluded. If appropriate, work with your attorney to establish the witness list. Chances are, however, you´ll be on it!

Preparation is Key

The only proper way to get ready for deposition or trial is to prepare, prepare, prepare. The witness should recreate the scenario in his or her head, create a chronology of events, review any information prepared by the witness either as part of his or her regularly conducted activity or as a recorded recollection, and practice responding to the anticipated questions. Attorneys and others are not permitted to coach a witness, but preparation is necessary and important to an expeditious trial. A witness who "can´t recall" anything relevant while testifying or who surprises everyone by divulging key information for the first time at trial has been either improperly chosen as a witness or improperly prepared.

Recreation of the Scenario The witness should reflect on his or her personal knowledge of the situation and dispute. Each event, fact, meeting, interplay, communication, or action regarding the situation at issue may be critical. Every fact that the witness remembers should be reviewed.

Personal Knowledge Sworn witnesses only can speak to those events about which they have first hand knowledge, or themselves witnessed or experienced. (see Fed. R. Evid. Rule 602). Anything else might be considered "hearsay" which is inadmissible when offered by lay witnesses, such as HR professionals, in employment cases (see Fed. R. Evid. Rule 801). The witness only may provide an opinion if that opinion is based on personal knowledge but cannot speculate as to how an event occurred or base an opinion on conjecture rather than fact. Further, the witness cannot testify to something he or she adopts from another. For example, if you investigated the incident of graffiti in the workplace, you could discuss the investigation and conclusions. However, you could not attempt to relay a conversation to which you were not privy but heard about later in the break room. Such third-party information is not admissible and the witness may not testify about it.

As a witness, you may also be able to offer opinion testimony if (1) your opinion is rationally based on your perception and (2) the opinion would be helpful to clearly understand your testimony or the determination of a fact at issue. (see Fed. R. Evid. Rule 701). For example, you may be entitled to speak about whether an employee shown on a surveillance camera in the workplace is the plaintiff in this case based on your knowledge of the workplace, the employee, the method of surveillance, and the circumstances.

So as you prepare for your testimony, carefully distinguish among what you know about the events because of your personal involvement or experience in the matter; your opinions based on your personal knowledge of the persons involved or the incident; and those things you know only because you learned of them from another source or third-party. The last category constitutes the things you most likely will not be permitted to address.

Chronology of Events

Good trial attorneys prepare detailed case chronologies that incorporate both facts and documents. The same can be done with the assistance of your inhouse or external counsel. The chronology should include dates, facts, source of the facts, disputed facts, linked issues, and an evaluation of the facts. This chronology proves vital to "piece together" the story and find holes where the story becomes fuzzy.

This is a good time to discuss the concept of "privilege." In communicating or preparing materials, such as a chronology, with the assistance of counsel and in anticipation of litigation, you preserve the attorney-client privilege and need not disclose such information to the opposing party. (see Fed. R. Evid. Rule 501 and United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass. 1950)). If, on the other hand, this type of material is prepared without the assistance of counsel, you may be required to disclose any chronology or other materials relevant to the issue at hand. There is no such thing as an employer-employee privilege. Anything prepared by you or other employees for your employer is not deemed privileged and is not necessarily protected from disclosure to the opposing party. The only privilege that exists is between the attorney and the client, which generally includes the employer and all representatives of the employer acting within the scope of employment. All documents, communications or other information prepared in the course of litigation are protected, but bear in mind that the facts underlying those documents or communications may not be privileged. In sum, to create and preserve an attorney-client privilege, the communication must have been made between the law firm and the client, the communication must be for the purpose of facilitating professional legal services, and it must be made confidentially without disclosure to third persons.

Establishing and Maintaining Credibility on the Stand

Now it is your turn to take the stand. You should be prepared and confident, but not scripted in your responses. The employer´s attorneys´ goals when preparing you to testify include introducing you to the process, helping to organize the relevant facts into a credible and understandable format, reviewing pertinent documents and other evidence, and preparing you for cross-examination. Again, the attorney should not coach you or instruct you as to the content of your testimony.

Refresh Your Recollection

Prior to trial, you should review all pertinent documents to refresh your memory about the specifics and chronology of the events in question. However, you are not expected to memorize the documents! In fact, to do so would undermine your credibility and look rehearsed. The documents pertaining to the workplace and the events in question, if properly labeled and preserved, may be used in trial to "refresh your recollection." (see Fed. R. Evid. Rule 612). If you cannot recall specific details or facts, the attorney may "refresh your recollection" by allowing you to re-read certain portions of the documents on the stand. This is why documentation is so central to successful litigation. Written summaries and other documented evidence, such as photographs, policies and procedures, employee files and other thorough records of regularly conducted activity used in the ordinary course of business (i.e., time sheets, performance evaluation forms), aid in the case preparation, bolster your credibility at trial, can be used to refresh witnesses´ recollection, and can be admissible to the jury as supporting evidence of the incident.

Testify Honestly, Succinctly and Spontaneously

All witnesses, whether called by the plaintiff or defendant, want to be sure to answer all questions fully, but succinctly. The key here is to listen carefully to the question. Pause before responding and then only answer what has been asked. Pausing serves a couple of purposes: (1) it affords you and the judge or jury an opportunity to digest the question and (2) it offers a chance for the attorney to object to the question if it is not appropriate. If the attorney objects, then you are not permitted to answer until the judge rules on the objection. By pausing, you allow time for objection and ruling without jeopardizing the response by speaking too soon. The judge will either "overrule" the objection, in which case you must answer, or "sustain" the objection, in which case you may not answer.

Provide all relevant details and recollection of the question asked, but do not offer up additional or tangential information. Assume that the attorney has a reason for asking the specific question and adding to the answer may only serve to hurt your case or confuse a jury. If you need clarification of the question before you can answer, do not hesitate to ask for it. Never attempt to answer a question that is unclear, vague or compound (two or more questions asked together). If there is additional helpful information at the end of your testimony that has not been disclosed during your witness exam, you can make sure that it is brought out in cross-examination or re-direct. Consult with counsel on a break if you feel you were unable to express important information during direct examination.

Body language and demeanor also play a role in the decision-maker´s (i.e., the judge or jury´s) reaction to the witness. Notwithstanding your employment by the defendant, your role as a Human Resources representative is that of a neutral party, appearing unbiased and disciplined in your profession. Credibility attaches to those who are knowledgeable, honest, respectful, and responsive. When answering a question, it is best to direct answers to the judge or jury, for those are the people who will be deciding the case and need to hear the story.

Finally, be unequivocal when at all possible. Answer "yes" or "no" whenever appropriate. Hedging answers with responses like "perhaps," instead of "yes" or "I don´t think so" when the answer is "no," detract from your credibility. However, be honest as well by admitting when you do not know an answer.

Testifying on a witness stand is not easy, but you can arm yourself by being confident in your human resource practices and prepared for your testimony. So when the judge says, "Call your next witness" and the name called is yours, you will not panic, as you are well prepared for the task.

About the Authors

Stephanie Davis, Esq., has five years of hands on experience practicing employment law at several preeminent New York plaintiffs'' firms. As an employment attorney working from this perspective, it was Stephanie''s job to identify and arrive at solutions for problematic employment situations. Stephanie is admitted to the New York and New Jersey bars. Since joining EPS, Stephanie has facilitated employee and management training on numerous employment-related topics, including prevention of discrimination and harassment, diversity and cultural sensitivity, conducting an effective investigation, violence in the workplace, effective management skills and conflict resolution, and privacy and document retention issues, for public and private employers. Stephanie also has investigated and reported on internal employee complaints relating to harassment and discrimination in a variety of employment contexts. She can be reached at sdavis@epexperts.com.

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