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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.

Article Excerpt
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...

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