lawsuit

When faced with corporate litigation stemming from a criminal event occurring on your property, members of the security community are often first in the line of command – fielding questions from members of the executive team, quelling employee speculation and dealing with myriad legal details.

In order to protect themselves and their companies from liability, security professionals should recognize that getting sued is not the biggest problem, losing the suit is. As the old adage goes, the best defense is a good offense, and in the case of corporate litigation, preparation is key.

What follows is a set of best practices aimed at preparing company witnesses for deposition, the “10 Commandments of Deposition Preparation.”

Commandment #1: Thou Shalt Be a Good Listener
The first and foremost “commandment” of preparing a company witness for deposition is “Thou Shalt Be a Good Listener.” During the course of a deposition, a witness must always listen carefully to the questions being asked. He or she should routinely stop and think before answering any given question, as well as listen to the objections being brought about by his/her counsel. Finally, a witness should never accept a fact merely because the plaintiff says it is so. These types of questions will sometimes be prefaced with the phrase “isn’t it true that …” In other instances, this is implicit in the phrasing of the question.

Commandment #2: Thou Shalt Keep Your Cool
One of the most important things for a company witness to remember during the deposition process is to always remain calm, cool and collected. Never argue with counsel, and if you feel yourself getting upset, take a break, remove yourself from the situation and come back after you have had some time to cool down. It is a common tactic for counsel to try and get under the witness’ skin in the hopes that the witness will lose focus and begin to give testimony that undermines the witness’ defenses. In expressing opposing points of view, it is always better to be polite, but firm.

Commandment #3: Thou Shalt Not Guess or Volunteer
In the world of depositions, guessing or speculation equals death. It is imperative for all company witnesses to refrain from volunteering information and/or naming others who may have information about the case. Guessing at an answer almost always has an adverse effect on your case. Therefore, it is best to candidly admit that you do not know the answer to the question. Further, if you are not certain who may have better information than you in response to a question, your best course of action is to say you are not sure and allow your counsel to confirm this information later.

Commandment #4: Thou Shalt Review All Documents Carefully Before Answering
During a deposition, when presented with any documents, it is best for company witnesses to avoid comment if they have never before seen the documents. Similarly, witnesses should know their company’s individual policies and procedures. Make sure that any documents shown correspond to the relevant time period, and always remember to read the fine print.

Commandment #5: Thou Shalt Know What the Case is About and What Your Defenses Are
When meeting with counsel to prepare for deposition, ask him/her to give the witness a synopsis of what is being alleged by the plaintiff and what the claimed injuries are. The pitfall here is that if you do not, you will be unprepared for the inevitable deposition question on this which will give the plaintiff’s counsel the opportunity to paint you and your company as aloof and uncaring in front of the jury.

It is equally important to review your company’s responses to written discovery requests. This way, you can ensure that your deposition testimony is as consistent as possible with those responses. More importantly, if it is determined that something needs to be corrected, the deposition gives us a good opportunity to do so.

Commandment #6: Thou Shalt Not Waive Privilege
In most jurisdictions, both the contents of the company’s incident reports, as well as discussions with counsel during the investigation and defense of the case, are privileged and must not be revealed to opposing counsel in deposition. Thus, we cannot stress enough to our employees that even a small breach of this important commandment could give opposing counsel license to argue that privilege has been waived.

Commandment #7: Thou Shalt Not Say That You/Your Company Acted Negligently or Recklessly or That You Violated Company Policy
One of the most vital tips in preparing employees for deposition is to remind them that – under no circumstances – should they ever admit to acting recklessly or negligently. Even more importantly is never admitting to violating company policy. While it might seem obvious, sometimes deposed employees are inadvertently led to making such statements, which puts the entire company at risk.

Commandment #8: Thou Shalt Not Talk About Money
Opposing counsel will frequently attempt to paint our business decisions involving security as having been motivated exclusively for profitability. It is important that our employees be prepared to discuss all of the factors that went into our decisions on the level of security to provide. Although costs are certainly a factor in our company’s decision making process, it will be critical that the witness be prepared to explain how and why safety was the paramount consideration.

Commandment #9: Thou Shalt Correct Your Answer if Necessary
When being deposed, employees should know that their first answer to a given question does not necessarily have to be their final answer. If they find themselves “breaking” any of the previous commandments, such as admitting negligence or incorrectly stating monetary facts, they do have the right to change their answers.

Commandment #10: Thou Shalt Insist That Your Lawyer Get Together with You 7-10 Days Before Deposition and, If Necessary, Undergo a Mock Deposition
In the case of employee witnesses being deposed, it is essential to undergo a “mock” or trial deposition with company attorneys. By doing this, employees can familiarize themselves with legal jargon and, more importantly, learn what to expect during the deposition process. Attorneys can review specific questions and answers, as well as run through any negative scenarios and how to correct them before they become insurmountable obstacles.

Conclusion
Obeying these Ten Commandments is a good first step to protecting the company’s assets, its brand and its reputation. To be sure, there are many components to defending a suit and the deposition is simply one step in the process. As with any business decision, careful analysis and preparation is of critical importance to management of the litigation, achieving the desired outcome and ultimately a successful defense.

By:
Jon D. Groussman, J.D.
CAP Index, Inc.
jgroussman@capindex.com

Ken Shuttleworth, Esq.
Shuttleworth Williams PLLC
krs@shuttleworthwilliams.com

What is the first, and possibly only, civil wrongful death case resulting from the terrorist attacks of Sept. 11, 2001 got a trial date today. The Associated Press reported that the family of Mark Bavis, who was aboard United Flight 175 when it struck the World Trade Center, filed a lawsuit that is scheduled to go to trial on June 13. The lawsuit blames the airline and several other firms for security failures that led to the attacks.

"The Bavis family feels very strongly that the information about how checkpoint security failed wholesale on Sept. 11 needs to be brought out into the public light," said the family's lawyer. He said the family's case was "premised on the idea that 19 for 19 hijackers got through these checkpoints and carried out a concerted hijacking that should have been prevented."

There have been 95 similar lawsuits, but all have been settled. The publication reported that 97 percent of the relatives of those killed in planes that hit the World Trade Center or the Pentagon on Sept. 11 chose to receive payments from a special fund that Congress established. It distributed more than $7 billion to more than 5,000 survivors. Mark your calendars, folks.

Lots of news swirling around the closure of the Clear program yesterday. The company that operates the verified traveler program, Verified Identity Pass, announced yesterday that it would cease operations at all 18 airports due to the company being "unable to negotiate an agreement with its senior creditor to continue operations." The Clear program has more than 250,000 customers who pay $200 a year for expedited travel privileges. The company's Web site, which has been disabled does state that customers will not be given a refund for their membership, due to the company's financial position. I spoke with Ann Davis from the TSA and she said there are no anticipated impacts to TSA or overall airport security from the closure of Verified.

In more TSA news, a man is suing the agency for harassment, alleging that he was "subjected to harassing interrogation, and was unlawfully detained," reported CNN. Allegedly, when Steve Bierfeldt was going through security screening at the Lambert-St. Louis Missouri International Airport, TSA employees saw a metal cash box in his carry-on bag that required further screening. Inside was more than $4,700 dollars in cash. The man was taken into a private room and questioned about the money and unbeknownst to TSA officials, the man recorded the incident on his cell phone. During part of the conversation a TSA agent can be heard swearing at the man: "You want to play smartass, and I'm not going to play your f**king game," according to the CNN article. However, other audio samples from the incident seem relatively by the book (although admit I am no expert in constitutional law nor TSA procedures), but here's an excerpt for your review:

Officer: Why do you have this money? That's the question, that's the major question.

Bierfeldt: Yes, sir, and I'm asking whether I'm legally required to answer that question.

Officer: Answer that question first, why do you have this money.

Bierfeldt: Am I legally required to answer that question?

Officer: So you refuse to answer that question?

Bierfeldt: No, sir, I am not refusing.

Officer: Well, you're not answering.

Bierfeldt: I'm simply asking my rights under the law.

The TSA has addressed this issue on its blog: A TSA employee and members of the St. Louis Airport Police Department can be heard on the audio recording. TSA holds its employees to the highest professional standards. The tone and language used by the TSA employee was inappropriate and proper disciplinary action was taken.

The blog does not elaborate on the disciplinary action taken or the lawsuit.

It surely isn't eBay's week so far. Yesterday, France's auction regulatory authority said it will take the online auction site to court because it does not do enough to protect consumers from counterfeit items.

From the Associated Press article:
The Council of Sales thinks eBay's French site should be held to the same standards as France's auction houses, which need a special permit from authorities, partly to ensure consumers are protected.

In a statement, eBay's French brand, eBay.fr, said the legal action was "totally unjust."

Not that I am taking sides, but that seems to be eBay's response to everything. Or at least they also contend that they are doing enough to protect consumers and help reduce counterfeit items. Remember the testimony in front of Congress in October?

Council officials said after studying eBay.fr carefully for more than three years, they had compiled a list of complaints.

In one case, it said, a buyer who expected to purchase an 18th century painting actually received a piece of wood with a photocopy pasted onto it. In other cases, it said, sellers advertised pieces they did not actually own — using pictures cut out from auction catalogs.

Fakes are a big problem, the watchdog said, especially with African or Chinese art. In other cases, sellers never send the object to the buyer, it said. The council also said tax evasion is a problem among eBay users.

Fakes are certainly a big problem, according to Tiffany & Co. The high-end jewelry retailer and eBay have until Friday to submit court briefs in a trial over counterfeit items sold online. Tiffany is arguing that it is eBay's responsibility to ensure items bearing luxury brand names, such as Tiffany & Co., are real. eBay said imposing this requirement would be "impractical" for the company and the responsibility should lie with Tiffany.

Tiffany said during the bench trial that it found that 73 percent of jewelry sold on the site is fake, AHN reported.

I've been covering the fight between eBay and the retail community for some time. I have to admit that I like eBay's model and have used it, but I think the company needs to come forward and accept responsibility for the counterfeit and unsafe items being sold on their sites worldwide. They make money off each sales transaction and each item paid for through its PayPal subsidiary. The original manufacturer does not.

I know eBay, like any other company, wants to make money but operating its site with a "buyer beware" attitude isn't going to help them win any battles.