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.
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.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.
