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Involved in a lawsuit? Here are 10 commandments of deposition preparation

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Wednesday, June 22, 2011

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

Constantine “Dean” Nickas, Esq.
Wicker Smith O’Hara
McCoy & Ford P.A.
cnickas@wickersmith.com

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

Public doesn't like bag inspections on D.C. Metro. Where's the middle ground?

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Friday, January 7, 2011

It was only in November that I wrote this story about Tom Ridge's comments regarding a bombing attempt in the D.C. Metro. Basically, Ridge said that no matter what measures are put in place to secure public transportation, the risk remains high. But, better some security than none, right? Recently the Metro announced it has begun conducting random inspections of carry-on items.

“This adds another layer of security to our system,” said MTPD Chief Michael A. Taborn, in the article. “The program will increase visible methods of protecting our passengers and employees, while minimizing inconvenience to riders."

Well, apparently the inconvenience has become too much. I just read this article in The Washington Post that the Metro Riders' Advisory Council voted overwhelming for a resolution that will ask the Metro board to suspend bag inspections and consult with the public about transit security policy. Some members of the council said that the inspections are unnecessary because there are no credible threats to the transit system. Um, well, no threats except that guy who said he wanted to blow it up, right?

But, apparently the inspections are only suppose to take a few minutes and are fairly non-intrusive:
Police will randomly select bags or packages to check for hazardous materials using ionization technology as well as K-9 units trained to detect explosive materials. Carry on items will generally not be opened and physically inspected unless the equipment indicates a need for further inspection.

I know the public probably finds the inspections annoying more than anything, but there's got to be something in place to deter the crazies. Let's work to find a middle ground and not just kill the inspections, people. It's for your own good.

All aboard: Amtrak will soon allow firearms on trains

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Thursday, December 2, 2010

In less than two weeks, Amtrak will start allowing passengers to check unloaded firearms inside their bags, lifting a ban that was in put in place after Sept. 11, 2001.

All rifles, shotguns, handguns and pistols aboard must be locked in a hard-sided container and travelers must have a reservation for the weapon at least 24 hours before a departure, according to this article. The option to check bags does not exist at all stations and firearms can only be carried on to trains that offer it. The ban of firearms on trains was lifted last December and goes in to affect December 15th.

I wrote an article about an amendment that would permit passengers to check firearms back in September 2009 and in that piece one of the major concerns was that Amtrak didn't have the infrastructure in place to comply with such legislation:

“Unlike the airline industry, Amtrak has no system in place for a uniform system of screening for weapons or exact regulations regarding firearms,” wrote Thomas Carper, chairman of the board for Amtrak. “At Amtrak, baggage cars may be more easily accessed by a passenger or third party at any stop along the train route. Amtrak trains have no separate and secure cargo as airplanes do and our baggage cars are not alarmed.”

Well, apparently Amtrak has the systems it needs now:
"We believe we have taken the necessary steps-revised reservation system, modified baggage cars and stations to secure the firearms, and trained employees- to ensure firearms can safely and securely travel in checked baggage," said Amtrak Spokesman, Steve Kulm.

In a recent USA Today article, Kulm said that the company spent $2 million on staff training, modifying the reservation system and installing secure storage in 142 baggage cars to accommodate the guns.

As you might recall, the Department of Homeland Security has made a big push to boost security measures in the nation's public transit arena because it considers public transportation to be highly vulnerable to terrorism.

While there are certainly concerns about having adequate measures in place to secure these firearms, it does seem reasonable that people should be able to transport firearms on trains just like on airplanes. What do you think? Does this new rule pose a security threat to passengers?

NYPD increasingly relies on video in subways

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Wednesday, August 11, 2010

I am a huge fan of public transportation, but subways freak me out. It's a combination of too many people in a small place mixed with traveling several stories underground. Plus, this job hasn't helped at all. It's made me all too aware of security threats (to the point that I check my shower stall when I come home, just to make sure someone didn't break in and is hiding in there. Is that paranoia? It might be, but you trying being a single female living alone on the first floor).

Anyway, I'm always on guard in subways, and apparently for good reason. This New York Daily News article found that the NYPD requested surveillance footage from NYC Transit more than 2,000 times last year.

There are now more than 3,100 cameras installed throughout the subways, with 900 of them just installed this June. Plus, there are more cameras on the way. The MTA said 1,000 more will be installed by the end of next year.

While the article found that crime in the subway is at a historically low level, with less than six felonies a day in the 468-station system, it still makes me nervous. Video surveillance, as those in the industry know, can be great forensic tools (if they're properly installed and working correctly, which all too often they are not). But, because those cameras are often not monitored, they contribute little to preventing crime. And frankly, that's what I'm looking for. And with that in mind, I'd say it's probably a good thing for me to stay here in Maine where we're forced to just drive everywhere.

A historic day

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Wednesday, January 21, 2009

I was visiting with my friends last night and talked turned to yesterday's presidential inauguration. My friend, who I can honestly say probably has never  worried about security in her life, turned to me and said she was very concerned about Obama's safety yesterday. I think many U.S. citizens felt the same. Even though the event was a celebration of the future of this nation, there was also a dark undertone of what might, could or would happen. Thankfully, we can collectively breathe a sigh of relief. But challenges remain.

Here is an interesting article about the day's security plans from CNN.