The No. 1 Tip to Avoid Being Deposed: Easier Said Than Done?

By Andrew Lu on January 08, 2013 | Last updated on March 21, 2019

With news of general counsel being deposed and even being held personally liable for their actions on the job, you may be wondering how to insulate yourself from legal liability and specifically how to avoid being deposed.

The law firm Reed Smith is tackling this exact issue in a series of articles on how in-house counsel can avoid being called as witnesses in employment cases.

In its first article, the firm provides its No. 1 tip for GCs to avoid depositions: Don't play a role in the decision-making process. But isn't this easier said than done?

In the employment context, in-house counsel commonly play a role where they participate in internal investigations, layoffs, and discipline and termination decisions. But even when taking on these duties, in-house counsel can avoid being deposed if they take certain precautionary steps.

Namely, while the job of in-house counsel may be to give advice and lay out the risks of each decision, in-house counsel should avoid being the ultimate decision-maker. Instead, managers, supervisors, and human resource personnel should ideally make these decisions after reviewing any advice provided by you. So by stepping away from the ultimate decision, in-house counsel remove themselves from the decision-making tree and ideally avoid being deposed.

However, as you know, the process is rarely ever so neat and simple. If you could simply step aside and let someone else make the difficult decisions, then you probably would have done so long ago.

In practice, this "No. 1 tip" to avoid being deposed may be practical for run-of-the-mill employment decisions. But for any major decision, you may get some strange glances if you try to avoid being part of the decision-making tree.

Perhaps the next part in the series by Reed Smith will address these concerns.

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