When
people are injured on the job and they file a workers’ compensation claim, they
are known as applicants. Many applicants have never had their deposition taken
before. Although it may seem like a daunting task, depositions are not as
complicated as they may seem. Additionally, depositions are an essential
opportunity for both the applicant’s attorney and the defense counsel to obtain
facts which are vital to the claim.
A
deposition is an opportunity for the defense counsel assigned to the case, to
ask the applicant questions while “under oath.” There are many reasons why the
deposition may be taken. The defense counsel may need answers to simple
questions. However, the defense counsel cannot just call the applicant because
they cannot speak with them outside the presence of their attorney. Thus, they
must schedule a deposition to get the answers they need.
Deposition
testimony is considered the same as if an applicant were sitting before a judge
in court. Just because the depositions are taken outside of court, in a
“relaxed” atmosphere, does not mean the same obligation to tell the truth does
not apply. An oath is administered at the beginning of all depositions asking
the applicant to affirm they will tell the truth. This means that not telling
the truth in response to any questions asked, could result in criminal
penalties such as penalties for perjury and workers’ compensation fraud. Thus,
it is best to prepare for a deposition well in advance to ensure any
information relayed in response to questions asked is accurate.
Often,
the defense counsel has performed a substantial amount of research prior to the
deposition. They will have already obtained information about prior workers’
compensation claims, car accidents, and will also often have information from
investigators who have observed the applicant in performance of various daily
activities. The defense counsel will use such information to verify the applicant’s
credibility. For instance, they will ask the applicant questions they may
already have answers to, such as “were you in a car accident in May of 1995?”
The defense will already have proof that the applicant was in such an accident,
and if the applicant does not answer truthfully, they will use that dishonesty
against them later. The applicant’s credibility is essential to their case and
must be preserved.
Being
credible makes the applicant a good witness. The better they are as a witness,
the easier it will be for the applicant’s attorney to prevail on issues in
court that the defense counsel may challenge. This will also cause the defense
counsel to report to their client (the insurance adjuster) that the applicant
will make a good witness at trial, which could subsequently push them toward
settlement without putting up a fight in court.
Not
all of the questions asked by the defense will be directly relevant to the
particular case at issue but may lead to relevant evidence. Such information
includes past residences, places of employment, the names and addresses of
doctors the applicant has seen, hospitals where they have been a patient, and
any other lawsuits, accidents, injuries, etc.
It
is important for the applicant to listen carefully to each question. The
applicant should never assume they know the answer or begin to respond to a
question before the defense counsel has finished speaking. This is because,
once complete, the question may be designed to elicit certain information and
if answered prematurely, the applicant may not answer the question correctly,
which can cause harm to their case and credibility. This is also important
because a court reporter will be making a transcript of the deposition. If
people are talking over each other, or if they are talking to fast, it will be
difficult for the reporter to accurately transcribe all that transpired, which
can cause difficulty later if issues about what was said during the deposition
are raised in the future.
It
is also important to answer questions with words rather than gestures. When
describing an injury to a body part, do not merely say “I was hurt here” and
point to that area of your body. Rather, you should state, “I injured my left
knee.” Additionally, questions should be answered with yes or no responses.
Responses such as yeah, uh huh, or head nods, may not accurately reflect what
the applicant is attempting to say, making it difficult for the court reporter
to take down an accurate record of the proceedings.
If
the applicant is not sure they understand the question, they should ask for
clarification. There are no penalties for asking for a question to be repeated
or explained. As mentioned before, it is essential that the applicant
thoroughly understands the question so they can answer it accurately.
Applicants
should not guess. However, applicants can provide approximations based on
personal knowledge. For instance, if the defense counsel asks the applicant to
tell them how much change is in the defense counsel’s pocket, the applicant
would have to guess because they have never seen the defense counsel before and
would have no reason to know how much money they have. Whereas, if defense
counsel asks them to state the length of the conference table in the room where
they are sitting, the applicant can estimate what the length of the table is
because they have seen it with their own eyes and have personal knowledge of
the circumstances or surroundings at issue. Thus, it is acceptable for an
applicant to provide estimates or approximations based on personal knowledge,
but it is not acceptable to guess. It is important to remember that the
depositions are taken under oath and a guess can later be construed as a lie,
which can lead to penalties.
If
the applicant’s counsel objects to a question, the applicant should not answer
the question until instructed to by their attorney. There are situations where
the applicant’s attorney will instruct the applicant not to answer a question
to protect certain rights, such as the right against self-incrimination. Thus, the
applicant should pay close attention and strictly adhere to their attorney’s
instruction to ensure such rights are protected.
The
applicant should not volunteer information that is not requested. Often, there
will be a period of silence following a question by the defense counsel and the
time when the applicant has answered. This usually occurs because the defense
counsel is recording their notes. However, many applicants feel the need to
fill the silence with greater explanation of their response. Applicant’s should
refrain from doing so. If the defense counsel requires more information, they
should be forced to ask follow-up questions. Under no circumstance should the
applicant unnecessarily volunteer more information than is necessary to provide
a truthful answer to the specific question asked. If the applicant is confused
or requires guidance, they should ask for a break and consult with their
attorney.
The
applicant should be made aware that they can take breaks. If they need to use
the restroom, confer with their attorney, or just get up and stretch, they are
welcome to ask for a break so they can do so. It is understandable that a
person who was injured on the job may have to stand and stretch or move around
at certain intervals because of the condition they are in. The depositions are
not designed to be uncomfortable or overly unpleasant. If the applicant needs a
break, they can simply let their attorney know at any time. Additionally, they
do not need to remain seated while answering the questions. If it is easier or
more comfortable for them to stand, they are allowed to do so.
It
is important to remain professional and courteous at all times. This applies to
the applicant, and their attorney. A little professionalism and cordiality go a
long way. Especially since the applicant’s counsel will be working closely with
the defense counsel to obtain resolution of the case. They do not have to agree
on everything, but they do need to treat each other with courtesy. Such
treatment will make it much easier for the parties to settle the case and
provide expedient resolution to the applicant.
At
the conclusion of the deposition a transcript of the proceedings will be
prepared. The applicant will be provided an opportunity to review the
transcript and correct any errors. It is important to provide accurate answers
during the deposition, because, if the applicant makes changes based on the
transcript, the defense counsel can comment on such changes at trial, which
could undermine the applicant’s credibility as a witness. Depositions are a
means to gauge future testimony at trial and if the testimony at trial is not
consistent with the answers provided during the deposition, it can lead the
judge to believe the applicant has not been truthful. Additionally, the deposition
transcript can also be shown to doctors and others involved in the case who can
provide insights which may assist in determining the outcome of the case. Thus,
it is imperative that an accurate record be obtained during the deposition.
To
better prepare for the deposition and ensure the accuracy of the information
presented in the applicant’s answers, it is perfectly acceptable to review
documents prior to, or even during the deposition. Applicant attorneys should
review potential questions with the applicant to make sure they are prepared.
The attorney should also show the applicant what has been subpoenaed or
discovered already to ensure the applicant is prepared to answer questions
related to that material. It is also important for the applicant to understand
that they should not exaggerate or underestimate their disability. Honesty and
accuracy are essential to the proper resolution of the claim.
During
the deposition the applicant will also be asked how much time they spent in
preparing for the deposition. The applicant should provide an accurate
estimate, or actual time, if known, of the time spent in preparation with their
attorney. This is one of the few occasions where the defense must pay the
applicant’s attorney for time spent working on the case. The applicant may also
be reimbursed for their time off work to attend the deposition, along with
mileage and parking expenses.
For
more information about evidence and depositions see the following and be sure
to consult with a licensed attorney:
- California Civil Discovery Act, California Code of Civil Procedure sections 2016.010 – 2036.050 specifically sections 2025.010 – 2025.510 which address depositions in California.
- California Labor Code section 5710 which provides specific provisions for workers' compensation and insurance proceedings.
- California Evidence Code section 210 which discusses relevant evidence.