Expect personal attacks

Why this matters

Many employees are surprised when the other side turns the case toward them. The employer's story is easier to tell if you look unreliable, distracted, or already unhappy for other reasons. If you expect this, you can prepare calmly instead of reacting. It is not personal, even though it feels that way.

This is general information, not legal advice.

What employers commonly attack

• Your credibility and your memory.
• Your attendance and performance history, often recast as the real reason for the decision.
• Your finances, including other income.
• Your job search, including applications, resumes, and online profiles.
• Your mental health, including therapy, medication, and treatment records.
• Your family and personal life.
• Your social media and messages to friends and coworkers.
• Procedural conduct, such as the timing of your filings or how you handled conferral.

Why they do it

There are four reasons.

1. To suggest another cause for your harm, called an "alternative stressor."
2. To cut your damages by showing other income or gaps in your job search.
3. To shake your confidence and make settlement look better.
4. To build a record for credibility arguments at the hearing.

None of this means you did something wrong. It is a standard playbook.

How to prepare

Know your own documents

Read everything you will produce before you produce it. This includes texts and emails to friends and coworkers. Your own words to others are often the source of the "other stressor" theory. Reread them as the other side would.

Be accurate about what exists. Do not claim "none" if records show some. Absolute statements fail the first time a document contradicts them.

Make sure your applications, resumes, and online profiles agree with each other and with your testimony. Inconsistent work histories feed arguments that you misstated facts.

Answer briefly and truthfully

1. Listen to the whole question.
2. Answer only that question.
3. Stop talking.
4. Say "I don't recall" only when it is true. A false "I don't recall" is worse than a hard answer.
5. Do not argue. Do not guess.

Raise embarrassing facts yourself when it helps

Shame is a poor adviser. A hard fact you raise in your own words reads very differently from one the other side discovers. Tell anyone helping you about awkward facts early. Most problems can be handled if caught in time.

Keep your damages posture consistent

If you plan to keep emotional-distress damages to everyday feelings and not a diagnosis, you must stay consistent in every filing, answer, and testimony (see Chapter 7). Treatment records are generally protected only if you do not put your health at issue. Mental health is the biggest pressure point, so expect efforts to reach those records, and have your objections ready.

Limit what they can ask for

Object to overbroad requests, in writing, with a reason. Say what you will provide instead. The employer may ask about other income. Ask for the narrowest form, such as a summary instead of full returns.

For unrelated personal matters, object that the topic is outside the claims, and stay brief.

A short practice plan

Set aside an hour before your deposition or hearing. Write down the five questions you dread most. Answer each one out loud in two or three sentences. Then ask a friend to read the questions to you, without any case detail, and answer again. Short, plain answers get easier with repetition, and you will find the sentences that sound defensive before anyone else hears them.

People close to you can become witnesses

Someone you know may be named as a witness against you. Bias is a recognized way to challenge a witness.

• Ask for a firm witness-list date in the schedule order so you can prepare.
• Do not talk about the arbitration with anyone except a lawyer (Chapter 11). Above all, avoid anyone who could testify against you, even to deny or correct something. You cannot prove a conversation did not happen.
• Tell friends and family not to post about your case.

Keep your own communications spotless

Write short, professional emails. Do not characterize the other side. Send recap emails after calls. Meet deadlines early and keep proof of when you sent things. Easy compliance removes procedural jabs.

Staying calm

• Respond to the facts and the record, not the character remark.
• Do not answer an attack with an attack. Panels discount heated filings.
• Wait a day before replying to anything that makes you angry.
• Plan your answer to the hardest question you can think of, and say it out loud.
• Remember that the employer's own internal papers sometimes describe an employee who asks for leave as unreliable or as preparing a lawsuit. Those documents can help you if produced, so ask for them (Chapter 6).

When to object

Object when a question or request falls into one of these groups.

1. Outside the claims and defenses.
2. Covered by a privilege.
3. Overbroad, reaching well past what the claims need.
4. Harassing or plainly improper.

State the objection and the reason in a sentence. Then answer if the rules require it. If you are unsure, ask for a short break to think, and write the objection down.

The evidence rules are looser in arbitration. AAA R-33(a) says "Following the legal rules of evidence shall not be necessary." That means a weak attack may still come in. It will carry little weight if you stay steady and the record backs you.

Checklist

• Everything you will produce reread as the other side would read it.
• Applications, resumes, and profiles consistent with each other.
• No "none" or "never" answers that a document could contradict.
• Damages posture chosen and held.
• Objections ready for overbroad requests and unrelated personal topics.
• Five hardest questions answered out loud.
• No case talk with anyone who could become a witness.

Check your state

• Privilege for therapy records, and what counts as putting your mental condition at issue, differ by state.
• Rules on discovery of financial records differ.

Next: Chapter 11, Who you can talk to.

Sources

• AAA Employment Arbitration Rules (R-21 exchange of information, R-33 evidence)
• JAMS Employment Arbitration Rules (Rule 22 evidence)