Petrogram - Winter 2015 - (Page 20)
DESIGNATE and EDUCATE
the Corporate Representative Wisely
By Lourdes Espino Wydler, Esq.
hen a company is sued, it unfortunately cannot speak for itself.
The company speaks through its
executives and other employees. In almost
every kind of case involving c-stores and
fuel retailers, a plaintiff's attorney will seek
to depose the corporate representative. The
Florida Rules of Civil Procedure specifically
give companies the option of determining
who will speak on behalf of a corporate
defendant and the topics that will be part
of the testimony. Choosing this witness and
the areas of knowledge are a critical aspect
in successfully defending a case.
Florida Rule of Civil Procedure 1.310(b)(6)
states in pertinent part that a party may name
as a deponent a public or private corporation, a
partnership or association. The party setting the
deposition can also designate with "reasonable
particularity" the matters on which examination
is requested. In return, the company can designate one or more officers, directors, managing
agents or other persons who consent to do so,
to testify on its behalf and state the matters on
which they are designated to testify.
A big mistake that can be made in litigation
is designating the wrong corporate representative. Sometimes defendant companies
will ask an employee who was present at the
time of an incident to testify as the corporate
representative. As an example, while this
individual may have personal knowledge about
an accident which is the subject of a lawsuit,
they may not have knowledge about policies,
practices, or other incidents related to the
company. This is a material witness that will
be deposed as part of the case, but should not
be designated the corporate representative.
Corporations exist to limit personal exposure, and in certain circumstances owners,
officers, upper management or risk managers
may best serve the interest of the company
by testifying on the topics of examination. It is
important to keep in mind that the person designated will usually be the face of the company
testifying before a jury if the case proceeds to
trial and will be seated next to counsel at the
defense table until there is a verdict.
The burden to select and prepare a corporate representative on the areas of inquiry
is on the company. Failure to properly designate a person who has knowledge on
these examination areas and comply with
Florida law could potentially result in sanctions. Responding "I don't know" to areas of
questioning will place the company at a disadvantage. In fact, the worst result is selecting a witness who binds the corporation to
answers that may be incomplete or incorrect
because they were not educated before the
deposition. This is why preparation before
providing testimony is important.
View past issues of Petrogram online at www.fpma.org.
Corporate representatives must review
documents, watch surveillance footage, and
obtain information from employees or agents.
The duty is on the witness at the deposition
to provide information that is either known or
readily available to the corporation based on
the matters designated. The corporate representative will be asked questions about facts
as well as company opinions. Unnecessary
concessions regarding a company position
can be very damaging if the corporate representative is not prepared.
The rules provide no limitation on the number
of corporate representatives nor on the number
of examination areas for information. At any
time during discovery, early or late in litigation,
this corporate representative deposition can
be noticed depending on the opposing side's
strategy. Nevertheless, tipping the scales in
favor of the corporate defendant at any stage
is possible if the company has the right voice.
The corporate representative will become more
experienced with every deposition. This experience will promote company consistency and
comfort with the process.
Lourdes Wydler, Esq. is a partner at Marrero &
Wydler, a law firm concentrating its practice in
personal injury, negligent security, liquor liability, and employment law. She can be reached
Table of Contents for the Digital Edition of Petrogram - Winter 2015
2015 Sunshine EXPO Recap and Photo Highlights
2015 FPMA Patron Members
FPMA Announces New Private Health Insurance Exchange Member Benefit
Winning the Cold-Vault Competition
Designate and Educate the Corporate Representative Wisely
Calendar of Events
Index of Advertisers/Advertiser.com
Petrogram - Winter 2015