Former Employee Asked To Testify In Lawsuit

March 8, 2013 1:54 PM

I've been called as a witness in a lawsuit against my former employer (MegaCorp: a large, multi-national well-known media company). I have not worked for the company in many years, but have been in constant contact as this lawsuit was threatened before I resigned. Several (hopefully simple) Questions:

Some details:

- Lawsuit has been in the works for 8 years, covered by the press but not headline worthy. It finally goes to trial late April.
- I am a key witness, as the plaintiff named me personally as one of the 'execs' who was directly responsible for the grievance. The lawsuit if not 'against' me, but I am named in it as a conspirator, of sorts.
- The lawsuit is civil and no one was physically injured. It is a business matter. The case revolves around motivated coercion and collusion, rather than negligence.
- I was a basic, salaried employee with many layers of management above me, who was also not reprimanded, fired or warned for this.
- The trial (?) is in Connecticut against my time as an employee in New York, though I now live in California.

1) I haven't received any 'court notice' or anything official other than emails over the years with MegaCorp, who, ostensibly, are looking out for me. MegaCorp has vaguely offered to pay for my flight and lodging, but not time off work. They have given me a range of 4 days where I would need to be available. I am self employed, so this isn't an issue, but what if it was? Do I negotiate a daily stipend for meals and such? A daily rate? Or am I legally obligated to show up and should thank them for paying for anything at all?

2) I've never testified before. MegaCorp has a binder of all of my e-mails during the time so likely know more than I do about this whole affair. Other than telling the honest truth as I recall it (we have a pre-testimony interview thing scheduled)....how do I conduct myself as a witness? How do I do this right?

3) This is more of a legal one, and I would prefer a general answer, if you please. I have a personal lawyer, but he is expensive, and will no doubt say 'yes, retain me to guide you through this' if I ask him this: "Could I suffer any personal litigation or penalties for my actions as an employee?"

Anything else I'm not thinking of?

posted by anonymous to law & government (20 answers total)

"Could I suffer any personal litigation or penalties for my actions as an employee?"

IAAL, IANYL, TINLA. This is a complex question. Yes, you can suffer "litigation" in the sense of being named a defendant (as always), but that's the limit of insight that any posters will have here and you really do need to speak with your attorney. A judgment cannot be rendered against you in the instant litigation if you are not a party, but that does not mean that there are no other suits in the works or the pleadings will not be amended to include you as a defendant.

TL;DR: This is one of those times when it makes sense to pay your attorney for real, fact-intensive, comprehensive advice.
posted by Inspector.Gadget at 2:01 PM on March 8 [4 favorites]

MegaCorp, who, ostensibly, are looking out for me.

Absolutely, positively, not.

"Could I suffer any personal litigation or penalties for my actions as an employee?"

No one here can know, but the prudent approach would be to assume that you could be. I'd call up that lawyer of yours--better to pay now than blithely open yourself up to future suits. He can help with your other questions.

I'm not your lawyer, and this is not legal advice. Go talk to your lawyer.
posted by Admiral Haddock at 2:03 PM on March 8 [12 favorites]

My lawyer once told me that there are four answers to any question, either in a deposition or on the witness stand.

1. Yes
2. No
3. I don't know
4. I don't remember

Keep any answers to open ended questions terse and to the point. Don't elaborate. Be boring.

You'll have a chance to review the file, your emails, the details the plaintiff is alleging prior to your testimony.

For example, in a deposition once about an accident I was in, the opposing counsel kept asking me about a head injury. My complaint was a neck injury, but in the police report it was noticed that I mentioned that in the accident, I bumped my head against the windshield.

The guy wouldn't let it go, and it was confusing to me and I was getting annoyed. So finally, I said, "If I reported that I bumped my head, I bumped my head, but that's not where I was injured. I'm really confused about why you keep asking me about it, it's a non-issue."

My lawyer suppressed a laugh and the opposing counsel stopped asking me about it.

Other than that, I stuck to the script, was 100% honest and the insurance company settled satisfactorally.

It can't hurt to ask if there's a per diem for the time that you're testifying for Megacorp. But what the hell, it's a trip, it will be interesting and it's the right thing to do.
posted by Ruthless Bunny at 2:04 PM on March 8 [3 favorites]

You're named personally as responsible for the plaintiff's grievance? Were I in your shoes, I would, in fact, be retaining that very expensive personal lawyer. MegaCorp does not have your interests in mind at all; you're not even a current employee but a former one. They are not looking out for you except, as it were, as an unrelated side effect of looking out for themselves.

Pay your lawyer. It will be expensive. When you're asking questions like "how do I conduct myself as a witness? How do I do this right?" there is absolutely no way a bunch of random internet strangers can adequately and properly prepare you.

Pay your lawyer.
posted by Tomorrowful at 2:04 PM on March 8 [17 favorites]

I have a personal lawyer, but he is expensive, and will no doubt say 'yes, retain me to guide you through this' if I ask him this: "Could I suffer any personal litigation or penalties for my actions as an employee?"

You haven't given enough detail for even a lawyer to give an answer beyond the obvious: possibly so, and if you do it would be extremely expensive. Lawyer up. Tell that lawyer the details. Get a better answer.
posted by jaduncan at 2:06 PM on March 8

I would pay my lawyer for a consult and the second question I would have for him would be, "Can Mega Corp reimburse me for his fee?"
posted by JohnnyGunn at 2:11 PM on March 8 [6 favorites]

Megacorp can put their interests ahead of yours. You need a lawyer, that you pay for, who is looking out for your interests. Megacorp's lawyer probably will not be able to give you the advice that you need to protect your interests.

If you have assets, multiply the above urgency x 10.
posted by zippy at 2:13 PM on March 8 [2 favorites]

I am not even remotely a lawyer, but there is no way in hell I would testify if "the plaintiff named me personally as one of the 'execs' who was directly responsible for the grievance" without consulting an attorney.
posted by rabbitrabbit at 2:14 PM on March 8

IAAL, IANYL, TINLA.

1. It is unclear to me whether or not you are a party in the case because you say you are "named" as a conspirator. Whether or not you are a party, if you are a witness, you have to show up. The judge will not care about your per diem. Anything you get fom MegaCorp is a gift. And yes, they will not hesitate to point a finger at you.

2. You will be prepped according to your question. They will cover this in the prep. This is not a question where the internet can help you very much because of the following answer.

3. Yes, you could. Ask your lawyer. I hope he is expensive because he is good.

My lawyer once told me that there are four answers to any question, either in a deposition or on the witness stand.

Your lawyer gave bad advice, but was probably joking. These answers don't work for "what is your name?" or" "Dr. Expert, how do you think the fire started?"
posted by Tanizaki at 2:21 PM on March 8 [1 favorite]

You should ask Megacorp either to pay for your personal lawyer or to have their lawyers undertake to be be your lawyers, too. In the latter case, you'll still need to have your own lawyer to review the engagement letter offered to you by Megacorp's lawyers, and to be prepared to step in if and in the event Megacorp's lawyers have to resign as your counsel due to the appearance of a conflict of interest they didn't initially perceive.

It is customary in your facts for Megacorp to pay your travel expenses, which would include meals, etc., but it is not customary for them to pay you any kind of fee. Expert witnesses get fees, not eyewitnesses. It's a pain in the neck but there you go.
posted by MattD at 2:26 PM on March 8

Is this state court? Federal court? Are you an actual defendant?

I mean, if you are not a defendant someone has to subpoena you. If you are out of state, they may not be able to do that successfully. They can usually come to you to take a deposition; if you are a jey witness and the trial is on april i am shocked that has not happened yet.

Court rules do generally require witness fees, but they are quite small - maybe $40/day.

IANYL, these are questions you should ask your lawyer.
posted by dpx.mfx at 2:36 PM on March 8 [1 favorite]

I am an employment attorney. This is where a dollar spent now saves fifty later. Contact your personal attorney.
posted by Ironmouth at 2:41 PM on March 8

Like Tanizaki, I can't tell whether you are named as a defendant in the current case. But I will point out that even if you aren't, you could very easily be named as one in an amended complaint in the future.

MegaCorp, who, ostensibly, are looking out for me. There's no reason to think this is true. MegaCorp's interests may not align with yours at all.

Call that lawyer.
posted by fingersandtoes at 2:52 PM on March 8

I got similar advice about yes/no/don't recall from a lawyer, a good one, when I was being deposed. The idea was, when possible, answer only yes or no, and avoid giving opposing counsel more things to work with by blabbering away. Of course if I was asked a question that required a specific answer, I had to say more, but the idea was, this is a formal and adversarial procedure, not a social conversation, and you should not say anything that you do not have to say.

The thing is, he was preparing me specifically for that deposition in that case, and he knew what he was doing.
posted by thelonius at 2:54 PM on March 8 [2 favorites]

The public can get a 30-minute consultation with an attorney in Oregon for $35 through the state bar. Try calling your state bar to see if you can get a cheap consultation to get started.
posted by tacodave at 3:24 PM on March 8

If one of the parties wants you to show up, they will either just ask you nicely and you can be nice or show up, or they will issue a subpoena and you will be compelled to show up. You will know if you have been subpoenaed. A lot of time witnesses will ask for these anyway because their current employers require them if they're going to be taking leave from work to go.

You indicate you don't live in the state where the trial is to be held. I expect that you're generally outside of the court's power to compel you to be there. There is a process to get what is called a foreign subpoena, but it is a real pain in the ass, and may not be able to get accomplished in the next few weeks if you don't play ball.

The takeaway from this: if it's Megacorp who is going to call you to testify, you have a lot of leverage as to whether they're going to pay for your flight, accommodations, etc. (although it sounds like this is going to happen). I'm not sure about getting a stipend--it seems like that could be tantamount to paying for your testimony, but you can negotiate and see what happens. The other takeaway is that if you don't really want to go, you *might* be able to get out of this just by failing to cooperate with MegaCorp since they may not be able to get their act together in time to properly serve you with a subpoena. One thing you may get them to agree to do, though, is to pay for your own attorney.

If you're worried about your own liability for things that happened years ago, it is likely that any statute of limitations has already run and any claims against you are time-barred. It depends on the potential claims, so this is absolutely something you should discuss with your attorney if you're worried about it. So, I don't want you to conclude from this that there is no risk, but on its face it does not sound like there is much risk of a later claim against you personally. Don't perjure yourself, of course, as that would give rise to a claim.

For that reason, don't worry much about preparation (assuming you get this comfort by verifying this with your own attorney). If Megacorp is calling you, it will be their job to prepare you. But, basic advice is: (1) listen carefully to the question; (2) answer only the question and nothing else; (3) tell the truth; (4) if you do not know or do not recall, the truthful answer will be that you do not know or do not recall. Do not speculate about what an answer might be or could be--either you remember and know the answer and can give a brief, truthful answer, or you do not. Do not try to be "helpful" by explaining a bunch of stuff that was not asked. If Megacorp's attorney thinks more information is necessary, they will ask you follow up questions. They will also prepare you ahead of time; if they want you to expand on things and provide a lot of information in your testimony, they'll let you know this.
posted by MoonOrb at 4:34 PM on March 8 [1 favorite]

>I got similar advice about yes/no/don't recall from a lawyer

The point being made is that "I don't know" and "I don't remember" are often perfectly legitimate answers. That there are only four possible answers to any question is indeed a joke, not intended seriously.

But, as both of the Clintons have demonstrated, a too-frequent resort to these responses can seriously undermine the credibility of a witness. One other legitimate response is to respond, but to qualify the answer being given: "To the best of my recollection, he told me that there were two or three other radio amplifiers being used at the time."

It all depends on what the issue is and how it is presented. A witness who comes off as "too cute" is not a good witness. Jurors see that and usually can tell that something underhanded is going on.
posted by yclipse at 8:08 PM on March 8

MegaCorp, who, ostensibly, are looking out for me

!!!!

Be careful. I cringed pretty hard reading that.
posted by ablazingsaddle at 8:37 PM on March 8 [1 favorite]

Pessimist's/realist's view.

MegaCorp is only looking out for you to the degree that your interests align with theirs, otherwise they aren't doing their job which is to protect their shareholder's interest.

In other words, MegaCorp has no interest in looking out for you.

"Could I suffer any personal litigation.."Always. It cost money to defend even baseless allegations.
posted by Carbolic at 10:16 PM on March 8

This is a textbook example of a "you need to talk to your lawyer" case. The company is not looking out for you. Your lawyer is, that's why he's expensive.
posted by spaltavian at 3:18 PM on March 11