Breathless headlines warn of the “Big resignation” or one “Apocalypse of resignationwhich will soon empty the booths across the country. As exaggerated as these reports may be, there is some truth to these warnings, and they should impact how attorneys and their clients view the depositions.
For decades, the median number of years an employee has been with a single employer has remained relatively stable at around four years. But this number is expected to decrease in the coming years.
Millennials have been dubbed the “generation changing jobs” because they display a significantly higher willingness to change careers than non-millennials. By some accounts, Gen Z is even less likely to stay in one place for long. As older workers retire, these demographics will become an increasingly important part of the labor market. Additionally, the growth of the gig economy and the rise of remote working can only further disrupt traditional long-term employment.
What does all this mean for depositions? Chances are that an employee who has crucial testimony to your case won’t be around when your case finally comes to trial. Indeed, according to latest statistics available from federal justiceit takes about 28 months for a civil case to start test. As of June 2021, 11% of cases brought to federal court were more than three years old. Based on stats alone, both your client and your opponent will see significant staff turnover during this time.
Now that you know this risk, you need to take steps to protect your client and your case from it. To minimize the risk of losing crucial witnesses, consider these three lessons:
1. There’s no such thing as a pure “Discovery Repository”
You may find that what you thought was a “discovery statement” turned out to be the alone testimony of a key employee. Therefore, every deposition must be treated as an opportunity to score points – or lose points – on the merits of a case.
This means there is significant ground you may need to cover while depositing. Will you need this witness to authenticate crucial documents in the trial? Remember to authenticate them during the deposition. Do you need this witness to establish a critical element of a claim or defense? Remember to cover it in your deposition. It’s fine to keep your strategy a secret from opposing counsel, but it won’t do you any good if your critical witness becomes unavailable for trial.
2. Pay extra for video deposit
Video depositions were once exotic expenses, reserved for complicated, well-funded trials. Today they should be considered standard. At trial, video testimony has far more impact than a lackluster read. Today, people are used to seeing screens, focusing on screens and confident screens. The video allows a jury to put a name to a face. It helps jurors remember what was said. It also allows jurors to assess the body language and truthfulness of the witness. Pay extra for the videographer, and one day you’ll be grateful you did.
3. Keep the customer informed
It’s not just your opponent’s employees you need to worry about. Your own client’s employee witnesses can also leave before the trial. So what can you do?
Of course, the rules of ethics and Federal law prohibits attorneys from offering any witness any inducement “prohibited by law.” See Rule 3.4 of the ABA Model Rules of Professional Conduct; 18 USCA § 201(b)(3) (“Bribing Public Officials and Witnesses”). But you can provide your client with a list of material witness employees and request notice of termination or retirement from any witness. This could give you critical time to plan the testimony of this witness before he leaves.
Conclusion: The world has changed, and it continues to change. Lawyers need to change with him or else their cases and their clients will suffer.
©2022 Epstein Becker & Green, PC All rights reserved.National Law Review, Volume XII, Number 32