Should you represent your business’ former employee? From the plaintiff’s perspective, I am always happiest to see a business’ former employee testifying at a deposition without counsel. I am also puzzled by the failure of a former employer to represent the witness. There are multiple reasons why a business may not want to represent a former employee including bad blood, the expense of preparing and representing them, potential conflicts of interest etc. However, absent these situations, failing to represent a former employee raises a lot of red flags and makes the witness ripe to be turned against the former company.
Former employees know where the bodies are buried, are not shy about sharing gossip, bad practices, things that fell through the cracks etc. Former employees are also remarkably willing to dump on the employer, regardless of whether they are telling the truth. There is very little risk to a former employee telling the truth about an employer and if there is no counsel there to temper their testimony or at least be aware of what is coming, it is a recipe for a plaintiff’s lawyer’s field day.
Years ago, I represented medical providers in malpractice lawsuits. It was our practice to represent all former employees, for free, no matter how much it cost, what it would require etc. As soon as a subpoena was received by a former employee, who was a non-party witness, we would immediately seek to be appointed as counsel by the carrier. It was an important step and one that usually avoided problems.