Three Rules You Should Always Observe;
General Information About the Deposition
Litigation in your workers compensation claim commences upon the filing of your Application for Adjudication. This is generally done by an attorney.
Following the filing of the Application, the Defendant may schedule your deposition. First, if you have never before had your deposition taken, you should be aware that there will be at least three people present at your deposition: (1) Your attorney, (2) A defense attorney hired by the employer’s insurance carrier, or hired by the employer who is self-insured, and (3) A certified court reporter who will administer an oath whereby you will be required to raise your right hand and swear to tell the truth.
The Court reporter will bring a lap-top computer and a stenograph machine to the deposition which enables her to take down each question that is directed to you and each response you provide to a question. The court reporter is trained in using the stenograph machine to rapidly record all conversation in the room utilizing a type of shorthand.
Your attorney has the right to object to questions posed to you by the defense attorney and even to instruct you not to answer a question. In actual practice, persons being deposed regarding work injuries are rarely instructed not to answer a question. That should only be done in the case of a clearly improper question such as one that violates the “attorney client” privilege. Thus it is totally improper for the defense attorney to inquire about cofidential conversations between me, or my staff, and my client, the injured worker.
You will be expected to answer most questions in a deposition, although the same question might be subject to a sustained objection at trial. The idea is that although objectionable, such as a question that violates the “hearsay rule”, the defendant is entitled to have answers to questions that might lead to admissible evidence. If I as your attorney object and instruct you not to answer, the defendant can go to Court with a motion to compel your answers to the objected to questions. In most instances the motion to compel would be successful and you would be ordered to answer the questions anyway. Such a motion would likely be accompanied by a request for award of monetary sanctions against me, and possible against you. So there is very little point in instructing my client not to answer most questions posed in a depostion. There are some questions that are totally improper and should be subject to an objection and instruction not to answer.
What if you feel that answering the question would provide information that is too private, or is protected by the right to privacy? In injury claims that do not involve a claim for psychiatric injury, an objection and instruction not to answer on grounds that the question violates the injured worker’s privacy will often be successful. If the claim involves a claim for psychiatric injury the privacy objection will not often provide protection to the injured worker who desires not to answer the question. The reason is that in psychiatric injury claims the defendant has the benefit of the “predominant cause” defense which places the burden of proof on the person injured at work to prove that at least 51% of his/her psychiatric symptoms, such as depression or anxiety, were caused by conditions at work, or resulted from the pain and disability of having been hurt at work.
There are three important rules to follow when having your deposition taken:
1. ALWAYS TELL THE TRUTH! The surest way to do serious damage to your claim is to get caught telling a falsehood. Remember that you are under oath while testifying. But the defendant is less interested in catching you in a lie so they can have you prosecuted for perjury, than they are interested in bringing down the settlement value of your case.
To illustrate what I have just said, I will provide an example from the case of an actual client of mine who got caught not telling the truth. The client suffered from legitimate injuries to her low back as well as bilateral carpal tunnel syndrome. These injuries had been verified by MRI and EMG.
Unfortunately, when she was asked by the defense attorney “Do you ever wash your car?” she answered “Oh no, I can’t do that. I have my children wash my car for me.” The defense lawyer had in his possession a videotape of her washing her vehicle, apparently in no distress. In truth and in fact, she would have been experiencing pain in both hands, but this would not necessarily be evident to the viewer of the video. This unfortunate woman was required to settle her case for much less than it was worth due the video.
A word about surveillance videos… The defense does not have to notify me as your attorney of their possession of such a video until the time of the Mandatory Settlement Conference. So there was no way I could have provided my client more than a general warning to tell the truth because the defense sometimes videotapes an injured worker in the area outside his/her house, or at the supermarket.
It would have been much wiser for her to have admitted that in fact some days are better than other days, and some days she thinks she has improved a bit, and can engage in physical activity that her doctor has restricted her from doing. She could have said, “Yes Sir, I try to do that sometimes, and do I ever pay the price. Afterwards I need to lay down and sleep off the pain, and I wish I had followed my doctor’s restrictions”.
(2) NEVER ANSWER A QUESTION YOU DO NOT UNDERSTAND! You have the right to ask the attorney to re-phrase the question, and most defense attorneys are happy to do so. Later on when someone is reading the transcript of your deposition, and they read an answer to a question you did not understand, they will not know that. So if your answer is factually incorrect, or doesn’t otherwise make sense, the reader may be negatively influenced.
(3) DON’T GUESS, BUT IT IS QUITE ALRIGHT TO ESTIMATE. In this regard it is important to note the difference between a guess and an estimate. Attorneys who conduct depositions will provide different examples of the difference. The thing to remember is that an estimate is based on something you know, you once knew but have forgotten much of what you once knew, or something that you have some memory of. A guess is just a guess. It is not based on anything you now know, or ever knew. For example if I were to ask you to estimate the amount of cash you have on your person you could probably do that, and if it turned out you were off by $20.00 it would not be important in answering a question at a deposition because after all, it was only an estimate. If I asked you to estimate how much cash I have in my wallet, you could not estimate that because you have no knowledge or memory on which to base that answer. You would have to guess.
Always remember that a transcript of your deposition testimony will be prepared. So if you guess and it turns out you were incorrect, some readers may think you were lying. Likewise, if you estimate, but fail to make it clear on the record that you are estimating, and it turns out you were wrong, a person who later reads the transcript may think you were lying. Always say before you provide an estimate, “I’m estimating now”.
In conclusion, there are several other things to know about your deposition. You have the right to take a break at any time. Just ask the attorney who is conducting the deposition. In over 30 years of practice I have never seen such a request denied.
If you are my client and you wish to speak to me privately, this is your right. Just tell the other attorney “I need to speak to my attorney”.
If your back hurts and you need to alternately sit and stand, you have the right to do that.
If English is not your first language, although you can get by in English, you have the right to have an interpreter assist you.