important deposition tipsKeeping in mind the two principles discussed below should be helpful to your deposition testimony on the most fundamental level, no matter who you are and no matter what type of case you are involved in:

1.Do Not Overthink Each Question You Are Asked At Your Deposition. This especially applies to the most educated and professionally accomplished deponents, who naturally read between the lines and look for deeper meaning in just about anything they hear. Contrary to what courtroom dramas make us believe, most questions you will be asked at a typical deposition are straightforward and are not meant to somehow trick you. There is no reason for you to overanalyze each question especially if you are trying to be honest and truthful and you have nothing to hide. When you look like you are responding to deposition questions in a way that will best serve your side of the case, rather than simply telling the truth, the other side will likely notice that and will try to take advantage of it in a number of potentially creative ways, including simply making you look less credible and less believable. Also, if you end up testifying incorrectly about anything during your deposition, you will still have the opportunity to go back and correct your testimony later in the proceedings or even after that deposition concluded. Hopefully, your attorney is carefully listening to your testimony and he will be able to address any issues with your testimony during breaks and before your deposition is over.

2. Answer The Questions Asked And Then Stop Talking and Wait For Next Question. This sounds so easy, and yet few people are able to follow this simple recommendation. All of us are used to speaking and elaborating on whatever we want to make a point. Also, saying more makes us less nervous if we are under any type of pressure when speaking. Your deposition testimony should be the opposite. You should be only answering each question asked and nothing more until you hear the next question.  For instance, if you are asked if you have been sued in the past 10 years for any similar issue, the answer should be “yes” or “no”; not “no, but I have been sued 15 years ago.” No one asked you about what happened 15 years ago, so there is no reason to elaborate on this. Your deposition is not the time to try to prove your case or convince the deposing attorney of anything. Your only goal during your deposition is to answer the questions asked as best and as truthfully as you can and do nothing more.

remote worker discrimination in CaliforniaAs one way of advancing the express purpose of the California Fair Employment and Housing Act to provide effective remedies for discrimination at the workplace, a special venue provision allows plaintiffs to file a lawsuit “in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked … but for the unlawful practice.” § 12965, subd. (c)(3) This provision has been interpreted broadly to allow remote workers to file a lawsuit for discrimination or any other type of violation of FEHA in the same county where they work remotely, even if their employer is located way outside that county.

Under the California Supreme Court case Brown v Superior Court (1984) case, the special provisions of this FEHA venue law “control in cases involving FEHA claims joined with non-FEHA claims arising from the same facts.” Thus, even if a remote worker files a lawsuit that contains non-FEHA claims (such as wage and other labor code violations, a defamation claim, etc…) along with at least one FEHA claim, he can still file that case in the same county where he resides and works out from.  Showing that all these claims arise from the same set of facts is usually easy because these claims do involve the same parties (aggrieved employee and employer) and essentially the same set of facts regarding that employee’s employment.

The Malloy v Superior Court (2022) case, which involved pregnancy discrimination allegations recognized the need to interpret the FEHA venue provision liberally in order to afford the aggrieved employees the greatest protection in filing a lawsuit and also in light of the remote work becoming ever so more common in the post-pandemic world.

reverse discrimination against US citizens at workplace in CaliforniaIn Rajaram v Meta Platforms, Inc. (2024), an employee sued Meta for giving a hiring preference to H1B visa holders over US Citizens. The 9th Circuit Court of Appeal held that section 42 USC 1981 prohibits employer from discriminating against United States citizens, because an employer that does so gives one class of people – noncitizens, or perhaps some group of noncitizens – a greater right to make contract than “white citizens”. The court relied in their decision, in part, on the Supreme Court case McDonald v Santa Fe Trail Transportation Co. (1976). In that case, white employees of a company were fired for theft, but a black employee charged with the same offense was not. The fired employees then successfully sued under section 1981.

The holdings in both of the above cases seems to be reasonable and consistent with the very idea that reverse discrimination is every bit as unlawful as a more conventional discrimination against employees who belong to historically marginalized groups. Reverse discrimination against whites or men, is and should be every bit as illegal as a discrimination against US citizens in hiring and employment privileges.

 

fired for not meeting goals - disability discriminationA typical disability discrimination claim by a salesperson involves a situation where the employee was fired for not meeting goals due to, in whole or in part, his known medical condition / qualifying disability. The employer then terminates an employee and later argues that the termination was lawful, because meeting the sales goals of the company is an “essential function” of the job. Thus, if that employee wasn’t able to perform that essential function with or without accommodation, then terminating him didn’t violate the law, and the case should be dismissed. See Zamora v Services Specialists, Inc. (2021).

Claimants who find themselves facing the above argument by the employer in litigation should be aware of a number of important precedents that could help them survive a motion to dismiss, or even win their case on the merits:

“Evidence of ‘essential functions’ may include the employer’s judgment, written job descriptions, the amount of time spent on the job

Religious accommodations to religious practices under Title VII of theThe Groff v Dejoy Postmaster General is a recent, significant Supreme Court case, which sets the employers’ obligation to accommodate employee religious practices. This case is extremely helpful to all those workers who need a religious accommodation at workplace, especially if it involves not working on certain days or holidays. In Groff, the highest Court has overturned a number of other decisions, which held that an employer is not required to “bear more than de minimus cost” in order to provide a religious accommodation.

The Supreme Court logically observed that these prior holdings are simply incompatible with the very language of Title VII, which requires employers to provide a religious accommodation unless it imposes “undue hardship” on their operations. “Undue hardship” is to mean a burden that is substantial in the overall context of an employer’s business. The Court further noted that even if the standard for relieving the employer of their obligation to accommodate was “hardship” and not “undue hardship”, it would still be a much higher standard than “more than de minimus cost”.   The Court went on to reiterate this point: “What is most important is that “undue hardship” in Title VII means what it says, and courts should resolve whether a hardship would be substantial in the context of an employer’s business in the common-sense manner that it would use in apply any such test.” The Court further observed: “An employer who fails to provide an accommodation has a defense only if the hardship is “undue”, and a hardship that is attributable to other employees’ animosity to a particular religion, to religion in general, or to the very notion of accommodation religious practice cannot be considered “undue”.

The Supreme Court also clarified that faced with an accommodation request such as Groff’s (a request to be exempt from working on Sundays), it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary. This is another reminder to employers (and employees as well) that both sides are encouraged to be creative when searching for appropriate accommodations, as there is no set list of options by law, and availability and reasonable of any considered accommodations depends on that employee’s job duties, the nature of employer’s business and their resources, and other factors unique to that specific situation.

effective attorney client relationshipIt’s important to recognize the reality that just about any case can be looked at from different angles, and the opposing party in your case probably feels just as strongly about them being right as you are. Too many people, who are involved in litigation, are convinced that they are 100% right, the truth is on their side, and that the opposite party has zero chance of winning because their position is devoid of merit.  When they start working with an attorney, they exaggerate the facts that support their case and understate or neglect to mention the unfavorable aspects of their situation altogether. All too often this type of underestimating of the other side and their potential arguments backfires and leads to unpleasant surprises at different stages of litigating a case.

Instead, one of the best ways to approach any case is by putting yourself in the other side’s shoes and coming up with the best arguments you believe they can make. Just pretend that you were hired to be the other side’s lawyer and you are supposed to come up with the best defense for their position in your case. Then work on formulating the best ways you could refute or at least address the arguments. The better prepared you are for the riskiest facts and the most difficult questions in your case, the less likely the other side is to be able to surprise you and undermine your side of the story.

This is also why you should share with your attorney all the information about all the potential issues you see yourself in your case however insignificant you think they are. Let your attorney decide which facts matter more or less. The more informed your attorney is about all the strengths and actual or perceived weaknesses of your case, the better equipped he will be to present your case as effectively as possible. This type of openness and objectivity will also make you appear as a more honest and thus a most trustworthy client.

tough lawyerAbout 10 years ago a client was unhappy when he saw me shaking the opposing attorney’s hand in court right before the hearing. The client went as far as to suspect me of colluding with the other side due to being “too friendly”. I suppose he saw too many lawyer movies which make it look like being disrespectful or downright rude is the way to go, when nothing could be further from the truth in reality. I wanted to tell him that there are very few situations where being mean toward opposing counsel is a good idea, I couldn’t think of a single such situation.

Going back to the question of whether it’s always better to have a tough lawyer – this depends on what being tough means and it also depends on your case. If being tough means being thorough and putting a lot of effort into positioning your case for trial or the best settlement outcome, while also being honest with you about the potential challenges in your case, then it certainly cannot hurt. If being tough means not being afraid to take a calculated risk of going to trial and not settling under the right circumstances, then it is great to have this type of lawyer on your side, although not always necessary. However, if being tough means being stubborn or being a bully for the sake of being a bully, fighting a losing battle just to fight while disregarding unfavorable evidence, then this type of attitude is likely to hurt the outcome of your case more than be of benefit in any way.

Above all, who said that your lawyer can’t be nice and respectful and at the same time be knowledgeable, thorough, and firm when needed? These qualities aren’t mutually exclusive but in fact, usually complement each other.  Being represented by an asshole isn’t nearly as exciting as some of the legal shows make it look, and you certainly don’t need your lawyer to be one in order to achieve the best results for you in your case.

religious exemption request in CaliforniaUnder California law, when you apply for a religious accommodation at workplace – your employer is entitled to request further information to better understand the reasons behind your request. The law is not clear what information the employer can inquire about, but they are entitled to a basic follow-up, reasonably necessary to address your request. This right has to be balanced against the idea that a claimed religious belief must generally be presumed true. Let’s look at two examples of religious accommodation requests and discuss one common mistake that an employee should avoid making in this process:

  1. Let’s say you are a Sabbath-observing Jew. You request that your employer allow you not to work on Saturdays to accommodate your religious practice. The employer would likely be allowed to ask you how long you have been observing Sabbath, and how strict your observance is, i.e. – whether you also do not drive, do not cook, and do not use a computer / TV on Saturdays. It would likely be unlawful for that employer to demand to test you on your knowledge of Judaism or condition granting your accommodation on your presenting some kind of documentation of your temple attendance.
  2. Let’s say you request a religious exemption from your employer’s requirement to be vaccinated against Covid-19 on the grounds of your adherence to an Eastern religion that cherishes purity of life and sanctity of body. Your employer is likely entitled to ask you for more information about your religion, even if it’s not an organized religion, and whether you also refrain from taking other vaccines or medications, and since when. The employer is likely not allowed to demand that you share with them your medication history from birth, a list of all of your religious beliefs, and other types of information that go far beyond what would be directly relevant to understanding the reasons behind your religious request.
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