Breathless headlines warn of the “Great Resignation” or a “Resignation Apocalypse” that will soon empty cubicles all around the nation. Exaggerated as these reports may be, there is a kernel of truth to these warnings, and they should impact the way lawyers and their clients view depositions.
For decades, the median number of years that a salaried employee stayed with a single employer remained relatively stable at about four years. But this number is expected to decline in the years ahead.
Millennials have been called the “job-hopping generation” because they display significantly higher willingness to switch careers than non-millennials. By some accounts, Gen Z is even less inclined to stay in one place for long. As older workers retire, these demographics will represent a greater and greater share of the workplace. Further, the growth of the “gig” economy and rise of remote work can only further disrupt traditional long term employment.
What does all this mean for depositions? There is a significant chance that an employee who has crucial testimony for your case might not be around anymore when your case finally goes to trial. In fact, according to the latest available statistics from the federal judiciary, it takes approximately 28 months for a civil case to begin trial. As of June 2021, 11% of cases in federal court were over three years old. Based on statistics alone, your client and opponent will see some significant employee turnover in that time.
Now that you know about 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 is No Such Thing as a Pure "Discovery Deposition"
You might find that what you thought was a “discovery deposition” turned out to be the only deposition of a crucial employee. Therefore, every deposition should be treated as an opportunity to score points—or lose points—on the merits of a case.
This means there is some important ground you may need to cover during the deposition. Will you need this witness to authenticate crucial documents at trial? Consider authenticating them during the deposition. Do you need this witness to establish a critical element of a claim or defense? Consider covering it in your deposition. It is all well and good to keep your strategy secret from opposing counsel, but it will do you little good if your critical witness becomes unavailable for trial.
2. Pay Extra for the Video Deposition
Video depositions were once exotic expenses, reserved for complicated and well-funded lawsuits. Today, they should be regarded as standard. At trial, video testimony is far more impactful than a drab read-in. Today, people are accustomed to seeing screens, focusing on screens, and trusting screens. Video lets a jury put a name to a face. It assists jurors in remembering what was said. It also lets jurors evaluate the body language and truthfulness of the witness. Pay extra for the videographer, and one day you will be grateful that you did.
3. Keep the Client Informed
It is not just your opponent’s employees you need to worry about. Employee-witnesses of your own client may also depart prior to trial. So what can you do?
Of course, the Rules of Professional Conduct and federal statute prohibit attorneys from offering any witness an inducement “that is prohibited by law.” See Rule 3.4 of the ABA Model Rules of Professional Conduct; 18 U.S.C.A. § 201(b)(3) (“Bribery of public officials and witnesses”). But you can provide your client with a list of important employee witnesses, and ask for advance notice of any witness’s termination or retirement. This could give you critical time in which to schedule a deposition of that witness prior to their departure.
Bottom line: The world has changed, and it continues to change. Lawyers need to change with it or their cases and clients will suffer.
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