Tuesday, November 05, 2013

Yanez v. Plummer (Cal. Ct. App. - Nov. 5, 2013)

A railroad employee gets injured on the job.  Another railroad employee witnesses at least part of the accident.

At the direction of his boss, the witness then signs a couple of written statements.  The two statements are slightly contradictory:  they're unclear about whether the witness actually saw the employee fall in the oil and grease-soaked pit, or whether he just "noticed" that the employee had fallen.

The victim sues.  The employee witness gets deposed.  At the deposition, the railroad's lawyer represents the witness.  The witness tells the lawyer he's worried because his testimony might be bad for the railroad.  The lawyer responds by telling the witness not to worry:  that as long as he tells the truth, everything will be fine.

So the witness testifies.  Generally consistent with his (admittedly somewhat confusing) written statements.

At which point the railroad's lawyer -- who also represents the witness -- essentially turns on the witness.  Introducing one of the two written statements (but not the other) to try to paint the employee's testimony as contradicted by his written statement.

Which is bad enough.

But it gets worse.

The railroad boss is at the deposition.  You might think:  Why?  Perhaps to try to intimidate the witness employee into testifying favorably for the railroad?

Nah.  That'd never happen.

But the witness didn't so testify.  So guess what happens next?

The boss "reviews" the deposition transcript.  And fires the witness from his job.  For allegedly testifying falsely against the company.  Based almost entirely on the alleged contradiction between the deposition testimony and his (confusing) written statements.


The employee ultimately sues the lawyer.  Alleging that the attorney "set him up" at the deposition.  Tried to deliberately make him look bad.  Which directly led to him getting fired.

The trial court grants summary judgment to the attorney.  The Court of Appeal reverses.

The attorney had a conflict.  He represented the employer.  But he also represented the witness.  Especially in a case like this, that's a conflict.  There was no waiver.  That can create liability.

Something to keep in mind when you represent witnesses at their deposition.  Make sure you don't generate similar problems.  Deliberately or not.

Get a written waiver.