Why It's Important to Get Your Testimony Right the First Time

Frequently in litigation we run into a situation where a plaintiff in a deposition (or some other witness, but it’s usually a plaintiff) makes a statement that is particularly damaging to her case. Or a witness will simply feign forgetfulness, reciting over and over again she doesn't recall the particular events that caused her to think that the employer was violating state or federal employment law.  Deposition testimony is recorded and transcribed, of course, and is taken under oath, which makes it effectively the same as testimony at a trial.

These damaging answers, or a lack of recollection, are normally put to good use by company counsel when they prepare the employer’s motion for summary judgment. So it is not unusual to see a plaintiff in an employment lawsuit, after realizing that she has screwed up her case by her deposition testimony, attempt to rewrite her answers by submitting an affidavit, also under oath, that either directly contradicts the deposition or fills in significant memory gaps once the specific nature of the damaging testimony becomes apparent.

Fortunately, this type of conduct is expressly prohibited, at least in federal court. A recent case out of Illinois serves as an example. The employee, who worked for the Post Office, repeatedly testified at his deposition he “could not recall exactly what it was his supervisor did that was discriminatory or improper.” He also testified that he did not remember any of the details about disciplinary actions that were taken against him. However, when the Post Office filed its motion for summary judgment (to have the court throw out the case before going to trial), the employee’s memory suddenly improved in the form of an affidavit he submitted that filled in the gaps in his previously unreliable memory, and in a seeming coincidence, raised issues of material facts that would have prevented the court from awarding summary judgment to the Post Office.

The federal judge would have none of it. She noted that the employee’s “alleged memory” lapse during his deposition, followed by a drastic recovery of his recollection post-deposition, was manifestly improper. The judge threw out the affidavit, meaning the employee was stuck with his responses at the deposition, which were insufficient to keep his case from going out the window prior to trial.

This is why it is crucial to nail down the recollections and facts for witnesses on both sides of the case early on. Courts are proving to be less and less willing to allow the type of sandbagging engaged in here, and an unresponsive witness can't fix the situation later on except in the most unusual circumstances.