federal employment law

Fast Legal Answers: How do I prepare for my deposition?

Mike Ivancie, Esq.

For my third post in the Fast Legal Answers series I will change gears and go from purely legal advice to the more practical. Today, I will be talking about how to prepare for a deposition. I’ll go into the basics about what to expect when your deposition is being taken, common questions, and how to properly respond to especially tricky questions.

Essential things to know before getting your deposition taken

 

What is a deposition?

A deposition is just another way to get testimony from an individual. Typically depositions are taken during the discovery phase of a case.

When you give a deposition you are under oath. This means your deposition testimony has the same weight as if you were testifying in court. So, you should take it as seriously as if you were going to testify in front of a judge and jury even though you are just going into a conference room with a few attorneys and a reporter.

How long does a deposition last?

Typically a deposition will only last one full day. The length of any deposition depends on the complexity of the case itself and other factors, such as the start time and the number of breaks taken.

The rules related to to the maximum length of a deposition will depend on the court or administrative body hearing your case and if the attorney’s have made any special requests for a longer deposition. For example, the federal rules of civil procedure limit a deposition to one day and 7 hours total. FRCP 30(d)(1)

How do I prepare?

Your attorney should work with you the week before your deposition. The attorney should give you advice similar to the advice in this article related to how you should answer questions and when you should ask for clarification.

Obviously, the attorney will need to go over your case in great detail. Focusing on the key issues and explaining the likely questions you are going to get related to those issues. How you approach these questions could be critical to the outcome of your case. There is an old quote lawyers have about their client’s deposition:

You almost never win your case because of your client’s deposition, but you certainly can lose it if things go south.

Answering Questions – Tips and Advice

So the deposition is really all about answering questions the other side’s attorney will ask you. It is important that you make sure you understand the question that is being asked of you. You should also only answer the question being asked. This means you do not volunteer information.

Do not speculate

Questions like, “Why do you think Tom called you after the accident?” call for speculation. Sure, you can probably guess why Tom called you, but you certainly do not know what Tom was thinking and you shouldn’t speculate when you answer questions. A proper response to a question like this would be: “I’m not sure why Tom called me, he is the one who can answer that question.”

If you do not understand a question, ask for clarification

Attorneys sometimes ask terrible-compound-rambling-unclear questions. When they do, which will likely happen a few times in your deposition, simply ask them to rephrase. That way you are clear on the question being asked which allows you to respond appropriately.

Moreover, don’t guess, speculate, or feel forced to answer a question. If you honestly don’t remember, just say so. But do not make up an answer because you feel pressure to give one. If a question is unclear to you it is always appropriate to ask for clarification. Indeed, you should never answer a question you don’t understand.

Answer only the question asked

If a yes or no answer is appropriate then answer with a yes or no only. Volunteering information generally is not a good idea.

Don’t unnecessarily elaborate or volunteer information:

  1. Incorrect approach:
    1. Q: Have you seen the wizard of OZ?
    2. A: Yes, I really was terrified of those flying monkeys. I’ve had nightmares about them the last 30 years.
  2. Correct approach:
    1. Q: Have you seen the wizard of OZ?
    2. A: Yes.

Questions that might seem strange

When you first start your deposition the other attorney may ask you a few questions that sound strange. They may ask you if you have been convicted of a felony, are impaired or under the influence of drugs, or otherwise are have some limitation that would prevent you from answering truthfully and fully. These are foundational questions that are necessary to make sure you are in the right frame of mind. This  prevents you or your attorney from making the argument that the bad answers you gave in your deposition were the result of some medication or other impairment you were suffering from during questioning. Do not take these questions personally, and do not get thrown off by them.

Court reporter tips

Because the court reporter will be creating a transcript of the deposition it is important that only one party talk at a time. So, make sure the attorney finishes his or her question before you start your answer.

Also, clients commonly provide a yes or no answer by shaking their head or mumbling something like “uh-huh.” This leads to an ugly and unclear transcript. So, make sure you give an audible “yes” or “no” to all questions.

Three Golden Rules for depositions:

  1. Tell the truth.

  2. Don’t speculate. It is totally acceptable to say “I don’t know” or “I don’t remember” if that is the truth. But if you know the answer you would be committing perjury if you say “I don’t know” 

  3. Answer only the question asked. DO NOT VOLUNTEER INFORMATION. 

 

Closing

Giving a deposition can be very intimidating, especially if you have never experienced the process before. A good attorney will prepare you ahead of time and get you familiar with the process. They will also inform you of any “landmines” to avoid and issues that are critical to the case. The key is to remain composed and make sure you understand the questions that are asked of you. Go slow, take your time, and do not feel pressured to “make the other attorney happy” with you answers. Finally, if you follow my three golden rules above, you will avoid the majority of the issues that could lead to a bad deposition.

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How to file an MSPB appeal (video guide)

Mike Ivancie, Esq.

Below is a step-by-step video guide to filing an MSPB appeal. It provides basic information like where you can download the appeal, how you complete the form, filing deadlines, and filing directions.

Click here to view the MSPB appeal form.

 

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Fast Legal Answers: Federal Whistleblower Protection Act

Mike Ivancie, Esq.

Time for my second article in the Fast Legal Answers series. Today, I’ll be talking about the Federal Whistleblower Protection Act (WPA).

Whistleblower Protection Act

 

What is the purpose of the WPA?

At its core, the WPA is intended to prevent fraud, waste, and abuse in the federal government by encouraging employees to report violations and the mismanagement of public resources. The act does this by assuring whistleblowers protection from retaliation for disclosures that the make.

What are the core elements of a whistleblower case?

The key criteria present in a whistleblower case are that: 1) a personnel action is taken against 2) a covered employee because they made a 3) protected disclosure.

 What is a personnel action?

A personnel action is most commonly understood as it relates to the selection, or non-selection of an employee but it also covers other issues such as promotion or any decision related to pay or benefits. More specifically, the statute provides the following definition:

(A) “personnel action” means—

(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this title or other disciplinary or corrective action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter 43 of this title;
(ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;
(x) a decision to order psychiatric testing or examination;
(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and
(xii) any other significant change in duties, responsibilities, or working conditions;

5 U.S. Code § 2302(a)(2)(A)

 Who is considered a covered employee?

A covered employee is defined by 5 U.S. Code § 2302(a)(2)(B). Generally, covered employees include current and former federal employees along with applicants to positions in the executive branch both in competitive and executive service.  Senior Executive Service positions are covered as well. Note that some agencies, specifically those involved in foreign and counter-intelligence operations, are excluded. Accordingly, employees from the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office are not considered covered employees. 5 U.S. Code § 2302(a)(2)(C)(ii)(I).

What sort of protected disclosures are covered by the WPA?

Covered employees are protected when they make any disclosure of information that they reasonably believe evidences: (1) a violation of any law, rule, or regulation; (2) gross mismanagement; (3) a gross waste of funds; (4) an abuse of authority; or (5) a substantial and specific danger to public health or safety. See 5 U.S. Code § 2302(b)(8).

Who do I have to make the disclosure to?

Typically, a disclosure to the individual involved in the violation is not sufficient to trigger whistleblower protection. The law has been interpreted to allow disclosure to a broad range of individuals. For example, disclosure can be made up the chain of command, to the heads of agencies and to members of congress. The party receiving the disclosure doesn’t need to be someone who can immediately stop or remedy the violation. So, if your supervisor is stealing money from your agency you reporting your knowledge of that misconduct back to the same supervisor wouldn’t be sufficient, but contacting his supervisor, or internal affairs, would.

Do I have to be the one who made the disclosure?

No. Whistleblower protection can be extended to individuals perceived as whistleblowers and individuals closely associated with actual whistleblowers. See Shelly v. Dept. of Treasury, 75 MSPR 411 (WPA protection attaches when employee “was perceived to have made, or was closely associated with someone who made, a disclosure protected under 5 U.S.C. § 2302(b)(8); the agency took or failed to take, or threatened to take or fail to take, a “personnel action” listed at 5 U.S.C. § 2302(a)(2)(A); and the appellant exhausted proceedings before OSC.”)

Who do I contact if I have been a victim of reprisal for my whistleblowing activities to?

The Office of Special Counsel (OSC). This is their standard form for reporting unlawful reprisal for whistleblowing activities. After your file your claim with the OSC they will investigate it. Then they may initiate an action on your behalf or issue you a right-to-file letter which allows you to pursue your whistleblowing case individually. It is critical that you make initial contact with the OSC and exhaust your administrative options prior to filing a formal action.

Where will me case be heard?

Cases are before the Merit Systems Protection Board. You can learn more about the MSPB at our MSPB law and discipline case legal guide.

Conclusion

Hopefully this quick overview of the WPA has answered some of the general questions you might have about whistleblower protections and whether or not you may qualify.

Note that nothing can substitute for specific legal advice tailored to the facts of your case.

If you love reading about the WPA, or want some materials to treat your insomnia, here are some additional resources related to the WPA:

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.

 

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Helpful EEOC Case Resources and Links

Mike Ivancie, Esq.

This list contains helpful resources for individuals who have filed, or are considering filing discrimination cases with the EEOC. This list may also be helpful for practitioners and representatives who are appear before the EEOC or in Federal District Court. Explanations related to the linked resource are included below the link when necessary.

I regularly add new links and resources to this guide. If you have suggestions feel free to email suggestions.

**Last Updated 1/12/2015**

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Fast Legal Answers: Reasonable Accommodations

Mike Ivancie, Esq.

For the first, in what is likely to be a continuing series titled Fast Legal Answers, I am going to give a quick and simple overview of a specific legal issue or topic. These article will be short, under 500 words, and will be as direct as possible.

Today I am going to talk about reasonable accommodations.

If you want more depth, I suggest you check out our legal guides section. Some of the articles there are huge and provide all the detail you could ever want.

This article will focus on reasonable accommodations in the federal sector. But the principles have general application.

Reasonable Accommodations

 

What are they?

A reasonable accommodation (RA) is a change to a job, work environment, or the way work is performed, that allows an individual with a disability to apply for or perform a job.

What is the basic rule?

An agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. 1630.9. The Commission also notes that an employee must show a nexus between the disabling condition and the requested accommodation. See Wiggins v. United States Postal Service, EEOC Appeal No. 01953715 (April 22, 1997).

Ok, explain that in non-legal speak please?

An employer must provide a RA if:

  1. The employee has a disability.
  2. The employee can perform the job normally with an accommodation (otherwise qualified individual).
  3. And that providing an accommodation wouldn’t be HUGE burden on the agency.

Does my employer have to give the accommodation that I ask for?

Nope. The agency just has to give you a reasonable accommodation that “enable[s] [you] to enjoy the same benefits and privileges of the job as enjoyed by non-disabled individuals.” Chausse v. National Security Agency, EEOC Appeal No. 01A32552 (June 25, 2003).

So, for example, if you are blind and need help using your computer, you may request an employee read the screen for you and help you use the mouse and keyboard. Instead, the agency provides you with accessibility software that gives verbal cues and allows you to interact with, and utilize, the computer. In this instance, the accommodation isn’t what you asked for, but it is still likely a reasonable one.

What if my employer refused to accommodate me?

You might have a discrimination case based on your disability, assuming you meet the criteria above, and any potential accommodation wouldn’t put an undue hardship on the agency.

You should be aware of the short 45-day timeline to file a claim with your EEOC counselor. Don’t wait to bring a failure to accommodate to the attention of your EEO office, otherwise you may lose your right to file.

If you think you might have a case, you should consult with an attorney. Reasonable accommodation cases are very fact specific so there is no simple formulaic way to know if you have been the victim of discrimination based on a failure to accommodate.

What constitutes undue hardship?

This too, is a fact-specific inquiry. It really turns on the specifics of your case. Large agencies with huge budgets may have less leeway than a smaller agency squeaking bye. The EEOC suggests the following factors are a good place to start in determining whether there is undue hardship:

  • the nature and cost of the accommodation needed;
  • the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
  • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
  • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
  • the impact of the accommodation on the operation of the facility

EEOC Enforcement Guidance, (citing 42 U.S.C. § 12111(10)(B) (1994); 29 C.F.R. § 1630.2(p)(2) (1997); 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997)).

Conclusion

I hope this article helped you understand how reasonable accommodations are analyzed. I’m nearly 200 words over my limit. I guess I’ll have to work on keeping it shorter for my next article in the Fast Legal Answers series.

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