10 ways an attorney will attack you on the stand

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in Employment Law,HR Management,Human Resources

If you're ever hauled into court to testify in a case against your organization, what you say, and how you say it, can sink your defense or make your arguments float. And don't forget: More than your credibility as a manager may be on trial; you could be held personally liable for your actions, if the plaintiff is angry enough with you.

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The good news: Some basic training and monitoring can prepare you to ward off the slings and arrows of an enemy attorney. Here are 10 weak spots that opposing attorneys will exploit to discredit you. Use them as a checklist for preventing a credibility attack.

1. Being unfamiliar with policies and procedures. A jury will view your lack of knowledge as uncaring and lax, at best: purposeful and negligent, at worst. After all, how can you enforce policies that you don't even know yourself?

2. Sloppy documentation. Most discrimination cases aren't won with "smoking gun" evidence. They're proven circumstantially, often through documents or statements made before the lawsuit is filed. You're smart enough not to admit bias directly, but juries know that a lot of testimony is self-serving. That's why documents, particularly e-mail, can help the employee show discriminatory intent.

3. Dishonest appraisals. Performance reviews are one of your most important forms of documentation, yet managers often inflate the ratings. When you later try to blame poor performance for an adverse employment action, those dishonest appraisals open up a land mine of credibility concerns.

4. Inconsistent statements. When responding to charges filed with the EEOC or state agencies, you often have to submit position statements or execute affidavits. You can bet the employee's attorney will review those statements, particularly affidavits, and introduce them at trial, especially if your story has changed. Keep it consistent.

5. Not taking complaints seriously. Turning a blind eye to any complaints of unfairness or perceived illegal actions will kill your organization's credibility and yours. Comments like "I'm not a baby-sitter" or "Boys will be boys" will jeopardize everything.

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6. Poor interviewing techniques. It may be easy to answer the question, "Why did you hire the person you did?" But managers often run into trouble when they have to answer, "Why did you reject certain other candidates?" That's because rejection decisions typically aren't well documented, and you may not recall the reasons later on. This "selective amnesia" will come off as a coverup for discrimination.

7. Changing rationales over time. Whenever a plaintiff can show that your reasons for making an adverse employment decision change midstream, your credibility is shot. Smart attorneys will argue, successfully, that your "reasons" are just pretext for discrimination.

8. Lack of knowledge as a well-rounded leader. Would you trust a brain surgeon who didn't stay updated on recent developments in the field? Well, juries will expect, and the plaintiff's lawyer will encourage them to expect, that you're staying abreast of developments in employment law.

9. Overdocumenting. You hear the mantra, "document, document, document." But you can overdocument, especially when it all occurs right before a firing.

10. Failing to work with an employee before firing. Remember, termination is the "capital punishment" of the employment world. Juries are likely to sympathize with employees who have lost their livelihood and self-esteem. A manager who fires without first trying to improve performance will appear insensitive and mean-spirited. Conversely, the manager who really tries to improve things before taking drastic action will stand a much better chance of winning in court.

The last thing any manager wants to face is an employee lawsuit, especially over a subject that could easily have been handled differently. When you take the time to ensure you’re following HR best practices, your organization will remain productive and your employees will remain efficient. They’ll also thank you for looking out for them.

HR Memos to Managers contains 81 concise training handouts covering nine key areas your supervisors must be familiar with:
book cover
  • Employment law (basic training)
  • Employee lawsuit risks
  • Hiring and interviewing
  • Performance reviews
  • Communication
  • Coaching and motivating
  • Management skills
  • Managing difficult situations
  • Terminations
This HR handbook – specially designed for supervisors – is an instant company training program. You can customize the handouts for your business, easily remove them from the HR Memos to Managers binder and distribute them to your managers. You'll also receive a Web link to the Memos for easy download. Best of all, HR Memos to Managers costs less than one hour of consulting time.

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