Don't take "don't guess" too literally.
One bit of very standard advice that all attorneys give to their clients before they testify in a deposition or in court is "Don't speculate." If you don't know something, don't try guessing at it.
That is an excellent general rule, but sometimes witnesses take it too literally and won't "guess" at anything even when it's completely obvious. If the witness is too cautious, he or she will come across as evasive and not credible. ("Is the Pope Catholic?" "I couldn't say. I've never met the Pope.")
Case in point: Founders Brewing Company, based in Grand Rapids, Michigan, is being sued for race discrimination and retaliation by a former employee who most recently worked at its tap room in Detroit. According to the ex-employee, Tracy Evans, he made several complaints about discrimination in the workplace, and then was fired after he told his supervisor that he would be going to meet with the Equal Employment Opportunity Commission.
The craft brewer says that Mr. Evans was a lousy employee and was terminated only after he disregarded an important deadline that his supervisor had been kind enough to extend several times.
Makes sense to me. But the brewer was actually forced to withdraw from a craft beer festival and shut down its tap room in Detroit after Mr. Evans sent the media excerpts from the deposition of his former supervisor. A public relations nightmare ensued.
Before I proceed, here is a link to an article about the disaster that has a photo of Mr. Evans.
Did you see the picture? So did I. Do you have any question about Mr. Evans's race? Neither do I. And we don't even know the guy.
But the supervisor, I'm sure, was advised by the company's attorneys not to "speculate" during his deposition. Then, in the deposition, he was asked whether he knew that Mr. Evans was black. It should have been an easy question with a "yes" answer.
Here's the exchange, with some very minor capitalization and spelling edits by me, and with objections from the brewery's attorney deleted:
ATTORNEY: When did you first meet Tracy Evans?
SUPERVISOR: 2011, 2012. We had mutual friends before working there, so …
ATTORNEY: OK, so you knew Tracy prior to his employment at Founders?
SUPERVISOR: We met a few times, yes.
ATTORNEY: OK, are you aware Tracy is black?
SUPERVISOR: What do you mean by that?
ATTORNEY: Are you aware Tracy is African-American?
SUPERVISOR: I’m not sure of his lineage so I can’t answer that.
ATTORNEY: All right. Are you aware that Tracy is a man of color?
SUPERVISOR: What do you mean by that?
ATTORNEY: No? Do you know … You don’t know what it means for someone to be a white person or a black person?
SUPERVISOR: I’m asking for clarification.
ATTORNEY: You don’t need any. I can promise you that. We’ll keep the record as is. Someone’s skin color. A white …
SUPERVISOR: So that’s what you’re referring to?
ATTORNEY: Yeah. Oh, yeah, yeah.
SUPERVISOR: OK. Yes, I know the difference in skin tone.
ATTORNEY: Are you able to identify individuals by their skin tone?
SUPERVISOR: What do you mean “identify”?
ATTORNEY: I mean have you ever looked at Tracy Evans in your entire life? Have you? That’s a … that’s a genuine question.
* * *
SUPERVISOR: Yes.
ATTORNEY: And did you ever realize that Tracy’s skin [is] black?
SUPERVISOR: That’s not … I mean, is his skin different from mine? Yes.
ATTORNEY: How?
SUPERVISOR: What do you mean “how”? It’s a different color.
ATTORNEY: And what is the difference of that color?
SUPERVISOR: It’s darker.
ATTORNEY: And that means?
* * *
ATTORNEY: I mean, we could … This could be a one-sentence answer, you know. [ROBIN: I know, I know!] So by your … I guess your testimony is you have no idea if Tracy is a minority, if he’s African-American?
SUPERVISOR: I don’t know Tracy’s lineage, so I can’t speculate on whether he’s … if he’s from Africa or not.
ATTORNEY: What do you mean lineage, from Africa?
SUPERVISOR: No. I mean, like, I don’t know his DNA.
ATTORNEY: Have you ever met black people who aren’t from Africa?
SUPERVISOR: Excuse me?
ATTORNEY: Have you ever met a black person born in America?
SUPERVISOR: Yes.
ATTORNEY: And you were able … Have you ever met a black person who didn’t tell you they were black?
SUPERVISOR: Can you rephrase that?
ATTORNEY: Is Barack Obama black?
* * *
ATTORNEY: To your knowledge?
SUPERVISOR: I’ve never met Barack Obama so I don’t …
ATTORNEY: So you don’t know if Barack Obama is black? What about Michael Jordan? Do you know if Michael Jordan is black?
* * *
SUPERVISOR: I’ve never met him.
ATTORNEY: So you don’t know him? What about Kwame Kilpatrick?
SUPERVISOR: Never met him.
ATTORNEY: To your knowledge, was Kwame Kilpatrick black?
SUPERVISOR: I …
ATTORNEY: You don’t know?
SUPERVISOR: I don’t know.
Kwame Kilpatrick is a former mayor of Detroit, and he is indisputably African-American. See below:
Bless the supervisor's heart. If I'd been representing the brewery, I would have called a short break and told him it was OK to say something like, "Yes, Mr. Evans is African-American to the best of my knowledge," or "I consider him African-American." Or even, "Yes." And ditto for Kwame Kilpatrick (!), Barack Obama (!!), and Michael Jordan (!!!).
Not that I condone Mr. Evans's actions of sending the deposition excerpt to the media. I don't. And based on my review of the court pleadings, it does sound as if the brewery may have had legitimate grounds to terminate Mr. Evans's employment and could even win summary judgment. What's more, I think the public reaction to the excerpt was way out of proportion to the supervisor's testimony. Yes, he sounds foolish and evasive, but that's not the same as being "racist" -- especially when every lawyer knows he was just taking his attorneys' advice too literally.
But this is a good example of what can happen when a witness takes the instruction "don't speculate" or "don't guess" too far. Lawyers, look out for your clients.
UPDATE (11/4/19): The case has settled. Thanks to reader Kayza for letting me know!
Image Credits: Beer from flickr, by Phil Denton. Kwame Kilpatrick from Dave Hogg, Wikimedia Commons. Both subject to Creative Commons license.
- Partner
Robin has more than 30 years' experience counseling employers and representing them before government agencies and in employment litigation involving Title VII and the Age Discrimination in Employment Act, the Americans with ...
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- William A. "Zan" Blue, Jr.
- Obasi Bryant
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Lara C. de Leon
- Christopher R. Deubert
- Joyce M. Dos Santos
- Colin Finnegan
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- David C. Kurtz
- Angelique Groza Lyons
- John E. MacDonald
- Alyssa K. Peters
- Sarah M. Phaff
- David P. Phippen
- William K. Principe
- Sabrina M. Punia-Ly
- Angela L. Rapko
- Rachael Rustmann
- Paul Ryan
- Piyumi M. Samaratunga
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Jill S. Stricklin
- Jack R. Wallace
Archives
- November 2024
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010