Cross-Examining the Plaintiff in Employment Harassment and Discrimination Cases

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, August 21, 2019

Recorded event now available

or call 1-800-926-7926
Program Materials

This CLE webinar will equip employment trial lawyers with the tools to handle the challenging task of cross-examining a plaintiff/victim claiming harassment or discrimination. Trial counsel is between a rock and a hard place: push too hard and the plaintiff/victim may garner sympathy; hold back too much and the defense suffers. For that and other reasons, the plaintiff/alleged victim's deposition is often the pivotal testimonial event in the case.


Rare is the employment law case that does not come down to the plaintiff's testimony. Whether in a deposition or during trial, counsel must know what to ask and how to ask it. Counsel must decide whether the deposition or trial should be the focus and how to prepare for the substance of either or both.

As the plaintiff’s lawyer, you want to make sure the plaintiff is prepared to discuss all acts of alleged discrimination, and the facts showing the adverse actions are discriminatory. Moreover, the plaintiff must be prepared to present evidence to rebut defendants’ defenses, evidence of emotional distress damages and evidence of mitigation of damages.

If it is likely a case will proceed to trial, counsel's deposition of the plaintiff may center on opportunities for impeachment at trial. However, counsel's plan to impeach the plaintiff must be nuanced to present a vigorous defense without alienating the jury.

Listen as our panel of courtroom veterans discusses the factors to weigh when choosing a deposition-focused or trial-focused approach, how to prepare for either, and an appropriate tone to maximize the ability to discredit the plaintiff without engendering jury sympathy.



  1. Differences between deposition cross and trial cross
  2. Witness preparation
    1. Information gathering
    2. Legal research
  3. Deposition conduct
    1. Learning the plaintiff's case
    2. Getting admissions
    3. Setting up impeachment
  4. Trial issues
    1. Know the answer to every question before asking
    2. Lines of attack
    3. Discrediting plaintiff testimony without fostering backlash sympathy


The panel will review these and other critical issues:

  • Whether to make deposition or trial the venue for plaintiff's cross-examination
  • Substantive preparation and planning for the plaintiff's deposition
  • Strategies for fortifying the plaintiff’s case during her deposition
  • Strategies for discrediting the plaintiff without provoking anger at the defendant(s)


Allyn, Ashley
Ashley Allyn

Of Counsel
Gibson Dunn & Crutcher

Ms. Allyn practices with the firm’s Labor and Employment and Litigation Departments. Her practice focuses on...  |  Read More

Bernabei, Lynne
Lynne Bernabei

Bernabei & Kabat

Ms. Bernabei has been litigating employment discrimination, civil rights, and whistleblower cases for over thirty...  |  Read More

Clark, Jonathan
Jonathan E. Clark

Sheppard Mullin Richter & Hampton

Mr. Clark has litigated on behalf of employers in both state and federal court, and in jurisdictions across the...  |  Read More

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