Former Employees As Witnesses
When a former employee is to be a witness in litigation involving the employer, issues are raised which need to be resolved carefully and thoughtfully. Law.com, in an In-House Counsel post by Linda L. Listrom of The Corporate Counselor, has covered the issues and developed useful guidelines for attorneys acting as in-house counsel for the employer (“When Your Witness Is a Former Employee”). We offer some additional insights for the smaller business employer, especially one too small to employ in-house counsel.
The guidelines offered by Ms. Listrom are summarized in her conclusion:
A former employee can be a pivotal witness for your company. Fortunately, the ethics rules permit you to help your former employee by alleviating some of the hardships of testifying. If a former employee wants counsel, you can provide it. If he wants to be compensated for his time, you can do that, as long as the fee is reasonable. But you cannot discourage him from cooperating with your opposing counsel, if he chooses to do so.
The analysis presented by the post is primarily for in-house lawyers since it is focused on the interpretation and application of ethical rules for lawyers, relying on the ABA Model Rules. Here are a few thoughts that may be of interest to the nonlawyers who may be running a small business (as well as the attorneys who advise them):
- The situation where a former employee is to be a witness highlights the problem of “burning bridges,” a problem we usually associate as the employee’s, not the employer’s. An employee who is “forced out’ by harassing tactics, rather than leaving on good terms may present a whole new set of issues. The better management practice is to be aware of the possibility and always take the high road when it comes to terminations and performance management.
- The Law.com post notes that it is proper to compensate former employees for their time acting as witnesses, within certain limits. If you use a severance agreement, and you probably should, you should discuss with counsel the possibility of including these provisions. They cost nothing unless you really are in litigation. Then, cooperation may be priceless.
- If the business has no in-house counsel, it is all the more important to contact to get advice from outside counsel on how to handle the former employee witness. In fact, as reflected in the Law.com post, it is primarily the lawyer’s role to contact former witnesses, even employers. Conversations about the case between a manager and a former employer are not likely to be privileged and are likely to be the proper subject of cross-examination,
Common sense tells us that if the employer business is involved in litigation, it is no stretch to anticipate that an employee may be a witness. That's why it is important to understand the issues presented and the appropriate ways to deal with the situation.
