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.