One of the most common and rather serious mistakes that both employees and employers make when testifying in a wrongful termination case is exaggerating and making their side of the story sound better than it actually is. It’s natural for anyone to advocate for themselves and see the facts from their own angle, but testifying as objectively as possible is often of critical importance to maintaining your credibility, i.e. having the court and jurors believe you. Since so many employment cases involve “he said / she said” situations, your credibility or believability can make a difference between winning and losing a case.
Let’s look at two common examples of exaggerating during the testimony and a simple way to avoid those mistakes, one on the employer and one on the employee’s side:
An employer is being sued by an employee, who was told that he was fired for a company policy violation, but he claims that he was fired due to discrimination or retaliation. During his deposition or court testimony, the employer is asked to rate that employee’s performance over the last 5 years of his employment with the company. The employer testifies “Oh… this is the worst employee we have ever had. I would rate him 0 on a scale of 1 to 10, absolutely terrible.” But then it turns out that the same employee received one or two pay raises over the last few years and he was also promoted. Besides, if he was so awful, why did he keep working for the company for five years instead of being fired much earlier?
It would have been much better for the employer not to make that employee sound worse than he really was, give him credit for the good work he did, especially if the termination was really due to a separate reason – a policy violation, and then talk about the termination reasons separately. By exaggerating during his testimony the employer called into question his other testimony, making the judge/jury wonder “if the employer exaggerated once, is it possible that he isn’t telling the truth about other things as well?”
Let’s look at one example from an employee’s perspective – an employee files a lawsuit for disability discrimination based on failure to accommodate his medical condition – back and neck injury. Let’s say that the employee was on medical leave which was extended twice. Then, his doctor recommended that upon return to work he be provided with the following accommodations – an ergonomic chair, special desk, and special keyboard. Let’s say the employer provided the desk and the chair, but for whatever reason they refused to get the keyboard to the employee, and when he complained about it to the higher management, the employer retaliated and fired him.
During his testimony, the employee is asked – has the employer done anything to accommodate your medical issues prior to terminating you? The employee says “No, absolutely nothing”. Again, this is an exaggeration or simply not true, that would make you look so much less honest before the court/jury.Why not say instead “The employer did a number of things which I very much appreciated but then he didn’t do this last thing that I really needed.” This would be a far more honest recount of events, and it will help you avoid the damaging line of questioning that you would be subjected to if you denied receiving any accommodations ever in this type of scenario: “Isn’t it true that your employer granted you medical leave? Isn’t it true that they agreed to extend your leave? And then they extended your leave one more time? Isn’t it true that they bought you a desk? And a chair? So, your testimony earlier about them doing nothing to accommodate you wasn’t true, was it?” You really want to avoid being in this situation, and it’s pretty easy to do – simply don’t exaggerate, and don’t make the employer sound worse than they really are.