Lance Armstrong and Litigation Leverage

Despite reportedly facing $135 million in liabilities stemming from numerous lawsuits filed against him, disgraced U.S. cyclist Lance Armstrong recently stated in an interview:

“I’m committing to working through them,” he said of the lawsuits, “and whether it’s settling cases or whether it’s fighting some cases — because some have merit, some don’t.  But I’m committed to the process and that’s probably as much as I would and could say about it. That’s a tricky area there.”

Mr. Armstrong, you are correct – it is a “tricky area”.  Given the financial troubles you are now facing, I humbly offer some free legal advice:  NEVER voluntarily and publicly state that any lawsuit against you has “merit.”

I don’t care if deep down inside you think it might.  I don’t care if the whole world thinks it does.  Even if you have been caught dead to rights, if you are not legally required to do so, do NOT voluntarily admit that a lawsuit filed against you has “merit.”

Your “merit” statement can and will be used against you.  Expect to be repeatedly asked the same set of questions about your “merit” statement at your upcoming depositions, including: (1) “Which specific cases have merit, and which do not?”; (2) “Does my client’s case have merit?”; (3) “Why do you consider the other cases meritorious, but not my client’s?”; and (4) “For those cases that have merit how much are you offering to settle them for?”

Imagine then the lawyers from the various lawsuits exchanging copies of their respective deposition transcripts  to see if you admitted in another deposition that their case had merit.  Strap on your trusty bike helmet – it’s going to be a bumpy ride.

Finally, remember that litigation, like the Tour de France, has many “stages.”  As you noted, one such stage involves settlement discussions.   Settlement discussions are negotiations.  To negotiate successfully one must fully utilize whatever “leverage” one has.  In broad strokes you telegraphed your legal strategy, and admitted some claims have merit.  Some of your leverage just disappeared faster than you did down the French mountainside.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

8 Simple Rules for Testifying as a Witness

At  one point or another in their career, every human resources manager will be required to testify as a witness, whether it be in a deposition, arbitration, unemployment or worker’s compensation hearing, or trial.  These situations are stressful and unpleasant.  To calm your nerves and present yourself as an effective witness, apply the following rules:

1.  Before testifying, review all of the facts/details so that you know them “cold.”  The devil is in the details.

2.  Listen to the question asked.  Really listen.

3.  Answer only the question asked.  Do not ramble on or go beyond the scope of the question.  For example, if the question is “Do you know John Smith?”, the answer is “Yes.”  It is not  “Yes, he is a co-worker of mine.”  Although that may be true, you were not asked that question.  Get into the mindset of only answering the question presented.

4.  Tell the truth.  You likely have been sworn in under oath.  Lying will destroy your case, and you could face a perjury charge.

5.  Do not guess, assume or speculate regarding anything.  Don’t say things like “I probably said…”

6.  If you truly don’t know or can’t recall the answer, say you “don’t know” or “can’t recall.”

7.  If your attorney objects to the question, immediately stop talking.  Do not answer unless further instructed to do so.

8.  Do not argue with the questioner, or answer the question with a question.  Keep calm.

There are many other tips and strategies an individual can employ to be an effective witness.  Simply following these 8 rules will make you a stronger, more credible witness than most, and get you off the hot seat quicker.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

 

Fight Club’s First Rule of HR – You DO NOT Talk About Your Lawyer

Remember the classic scene in the movie Fight Club?  Brad Pitt, founder of the “Club,” is talking to prospective pugilists about its rules.  He boldly declares the First Rule of Fight Club: “you do not talk about Fight Club.”  He then gives the Second Rule: “you DO NOT talk about Fight Club.”  Needless to say, everyone got the point – keep your mouth shut to avoid trouble.

In homage to Fight Club’s simple genius, I offer a modified version of this Rule for Human Resource Managers:

YOU DO NOT TALK ABOUT YOUR LAWYER.

You see, part of my job as a management side employment lawyer is preventative in nature:  I  consult with companies before they make a termination decision.  I do so in order to help them (hopefully) avoid lawsuits, and to put them in the best position to defeat any litigation that ensues.  Among other things, the client and I discuss the rationale(s) for the termination decision, the performance history of the employee, the existence (or lack thereof) of supporting documentation, whether the company is following its own disciplinary policies and/or practices, and the legal risks involved if the employee falls into a “protected” classification under discrimination laws.

These attorney-client discussions are treated under the law as “confidential” – they are protected from involuntary disclosure by the “attorney-client privilege.”  I cannot ethically disclose them.  Likewise, the company representative I am talking with cannot generally be forced to reveal them at deposition, in an interrogatory answer, or at trial.  This protection is critical, as it allows the client and I to engage in candid discussions of sensitive issues, without the fear of later disclosure.

Unfortunately, HR managers often violate my modified Rule. They say things like “we checked with our lawyer and he told us ….,” or “we will talk with our lawyer and get back to you”  in termination or disciplinary meetings with employees, or when discussing “reasonable accommodations” with them. To a degree it is understandable, as part of the normal  “give and take” of a conversation with an employee.

Moreover, on their face such remarks seem harmless.  But in reality, they are subtly dangerous.  Why? First and foremost, the client may have just waived the attorney-client privilege.  Remember, the privilege is for the client’s benefit.  But it can also be waived by the client. Any statement that references the content of a client’s prior conversation with their lawyer will likely be construed (or at least argued) as a “waiver” of the privilege.

If waived, the employee’s lawyer could ask the client probing questions about the details of that conversation, including all statements made before the decision to discipline, discharge or not accommodate.  This could result in the disclosure of comments that, even if not acted upon by the client, will be presented as evidence of a discriminatory or retaliatory intent, and/or at least an awareness of the potential for litigation.  Such statements will be trumpeted as “smoking guns” for the company’s “real” motivation behind its decision.

Second, such comments often “raise a flag” in an employee’s mind.  The employee thinks his situation has become “serious” –  for goodness sake, the company just told him/her that its lawyer has become involved!   With this knowledge, the employee usually does one of a couple of things: (a) he becomes very sensitive and files a “retaliation” claim for any adverse employment action taken against him, believing it was caused by his raising of a “legal” issue; or (b) goes out an immediately retains his own lawyer to advocate on his behalf; or (c) both.

None of these outcomes are positive for the company.  So apply the First Rule of HR:

YOU DO NOT TALK ABOUT YOUR LAWYER

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws