(This article relates to a typical workers compensation deposition in California)
A deposition is a statement taken under oath. It is usually taken in an attorney’s office, either yours or the insurance company’s. A court reporter will be present to record everything that is said.
A deposition is almost the same as giving testimony in court, except that no judge is present. You will be under the same oath that you take in court. Lying under oath is perjury. You will be subject to the penalty of perjury.
Perjury is a crime punishable by imprisonment or fine. In addition, in a workers’ compensation case, you can lose your right to any benefits and be charged with a separate felony if you make a false statement in order to obtain benefits. This includes statements that are not under oath, made to doctors, investigators, or insurance adjusters.
What Happens At A Deposition?
First the court reporter will have you raise your right hand and swear to tell the truth. The attorney will then ask you questions. Usually they give you a brief instruction on the ground rules of the deposition which will be similar to the information provided in this article. Your attorney will be present in order to object to any improper questions. You will usually be allowed to take a break whenever necessary. A workers’ compensation deposition is seldom confrontational. Most defense attorney’s prefer to act pleasant and engage you in conversation rather than “cross examine” you.
What Are The “Ground Rules” For A Deposition?
- Always give verbal responses. The court reporter takes down words spoken. If you nod your head or shake your head or point to a body part or otherwise demonstrate, this will not be recorded in the deposition. Also, the sounds we sometimes make to indicate affirmative or negative responses such as “ah huh” and “uh huh” are not clear when put into type. If you point to your left elbow you should say “my left elbow” not “this elbow.” If you point to your low back you should say “my low back” not “right here.”
- Do not respond to a question that you do not understand. If the attorney asks a question and you answer it, everyone will assume that you understood the question. If you have any doubt in your mind as to what the attorney means to ask, verbally clarify the question. It is entirely appropriate to say “Would you please rephrase the question?” or “I am not sure I know what you mean.” This requires the attorney to ask a question which is easier for you to understand.
- If you do not know an exact answer you may give your best estimate. “I don’t know” is a perfectly good answer. If you mean that you do not know something exactly when you can estimate, then you should provide an estimate. For example, if you are asked when something occurred and you know that it was in the summer or the winter but you do not know the day or the month, then you should say “sometime in the summer of 1995.” An estimate is based on your own observations. You should not guess at any answer but if you have some basis for estimating then you should do so.
- Be sure to allow the attorney to complete the question before you answer. Attorneys often are formulating their question as they speak and often add multiple qualifiers to the end of a question. You should leave a pause between the end of the question and the answer to make sure that the attorney is finished and to formulate your answer in your head before answering. In conversation we often anticipate the end of a question and answer before the questions is finished. However, the court reporter cannot record two people talking at the same time.
- You will have an opportunity to review and correct your testimony. Even though you will be allowed to read the finished transcript and to make corrections, you should give your best testimony at the time of the deposition. You are under oath when you give your deposition. If you change the testimony you give under oath that can be commented on and might make you look bad. Of course, if you are correcting mistakes made by the reporter, there is no problem.
- You may take a break whenever you need to. You can take a break to speak to your attorney or to attend to your personal needs. If you need to stand up or move around or stretch during your deposition you can do that either in a break or while you are talking. For instance, if your back is hurting and you want to stand while you testify you may just say “Do you mind if I stand up while I answer your questions?” The attorney will almost always allow this. Also, by speaking the words during the deposition you will have on the record that you were not able to sit during the whole process.
Some Common Questions
In most depositions, you will be asked whether you have been convicted of a felony. Do not be offended, everyone is asked this. If you have been convicted of a felony, be sure to speak to your attorney about it before the deposition. You will also be asked whether you are under the influence of any medication or alcohol. You will be asked whether you took any medication today and if you think that it will affect your ability to give accurate and truthful answers. You may be asked whether you reviewed any documents and, if you have, the attorney will have a right to look at those documents. Before reviewing any documents in preparation for your deposition you should discuss them with your attorney. You will also be asked whether you prepared verbally with anyone other than your attorney. Please do not talk about your case with anyone other than your attorney.
What Do They Ask About In My Worker’s Compensation Deposition?
In a normal workers’ compensation case depositions follow a predictable pattern. Main topics covered in your workers’ compensation deposition will be as follows:
- Identifying Information. You will be asked your name and address and probably your driver’s license number and social security number. You will probably be asked if you are a citizen of the United States or are legally able to work in this country. You will be asked about your addresses in the last five years and who you have lived with. The attorney will want to know whether you are married and the names and ages of your children. This information is just to get an idea of who you are.
- Previous employment. You will be asked to discuss your employers before you worked at the employer where you were injured. The basic questions are the name of the employer, the address, when you worked there, what your job duties were, who your immediate supervisor was, whether you were ever injured at that job and why you left. Generally speaking, your attorney is primarily concerned with whether you were ever injured at any previous job and whether you were ever fired from a previous job.
- Previous medical history. You will be asked about any prior injuries, including but not limited to work injuries. If you were ever involved in any automobile, motorcycle, pedestrian, or slip and fall accident, be sure to tell your attorney. If you have ever made any kind of claim for injuries of any sort be sure to discuss them with your attorney. Injuries not related to a claim are also important. If you have military or sports injuries or just fell down the stairs in your own house, these injuries are also important. The insurance company has access to computerized records of injuries reported to any insurance company or HMO. They will obtain these records to see if you are telling the truth about past injuries. You should be prepared to discuss with your attorney before the deposition all doctors that you saw for any reason in the past. You should also be prepared to discuss with your attorney and to answer questions about any disability or condition which you already had, which would affect your ability to work, or would otherwise affect your injury, such as arthritis, osteoporosis or diabetes.
- How your workers’ compensation injury occurred. Since workers’ compensation is a “no fault” system, this may not be very complicated. In other cases, where the injury occurred over a period of time or is otherwise a complicated situation, this part of the deposition may take a long time. You will discuss this with your attorney before the deposition.
- Medical treatment received for your work injury. You should be prepared to discuss all doctors you have consulted and medical treatment you have received as a result of your work injury. Be sure that your attorney knows all of the doctors. Hopefully he will have records from the doctors involved in this case.
- Your current disability. The attorney for the insurance company will want to know how you feel now and how you are limited in your ability to perform work of any kind. They often ask what activities you used to be able to perform that you cannot now. They will often ask what you do in a typical day.
- Special warning regarding psychological injuries. If your injury is of a psychological nature or your work injury has caused you to be depressed and we have included a claim for a psychological injury, you must be aware that the defendant has a right to ask you very personal questions about your life. Since we are claiming that the reason for your psychological problems is something that happened at work, they have a right to find out what other things happened in your life that might have caused you psychological problems. This includes inquiry into your relationship with your wife or husband and family, whether your children are taking drugs, whether you take drugs, whether you have ever been to a psychiatrist or counselor before, any embarrassing things that have happened to you, etc. Before your deposition you should consider what are the worst things they could know about you if they knew everything there was to know and discuss these with your attorney. Be prepared in a psychological injury case for your deposition to last much longer than other types of injuries.
Some Advice About Your Deposition
Be honest. I cannot emphasize enough the importance of being honest in your deposition. You are sworn to tell the truth and if you are caught in any lie no one will believe anything else you say. If there is something that you do not want to talk about at the deposition, be sure to talk about it with your attorney and he can help you decide whether it is necessary and, if so, how to best present the problematic information.
Answer “yes” or “no” if possible. If you are asked a yes or no question answer only “yes” or “no.” Do not elaborate or explain. The attorney will ask questions directed toward an explanation and you should answer those questions one at a time.
Keep your responses simple and to the point. It is very important that you do not think out loud or give more information than the question asked for. Listen carefully to the question and answer only the question that you are asked. It does no one any good for you to go into long explanations or long background descriptions. You may be exposing explanations that your attorney would rather save for the trial.
Be calm and polite. If you find yourself becoming angry, nervous or otherwise upset, please ask for a break and speak to your attorney. It can be very damaging for your case to argue with the attorney or present yourself as angry or upset. One of the main purposes of the deposition is for the insurance attorney to decide what kind of a witness you will be in trial. You must show him that you are ready to tell your story to the judge in a way that will impress the judge. If he thinks that you will blow up in court, he will be more likely to try the case than to settle it.
Remember the attorney-client privilege. You cannot be compelled to tell the other side about any conversation you have with your attorney. However, if you disclose information that is subject to the attorney-client privilege then you will have waived the privilege. If you have any questions or doubts be sure to ask your attorney before answering the question. In workers’ compensation cases we commonly make an exception to this privilege in regard to a common question regarding the amount of time you spent in preparation with your attorney. The reason for that is that the insurance company has to pay your attorney for the time spent in preparation and in the process of the deposition. This is the only time the attorney is paid when it does not come out of your money so please do not underestimate the time you spent in preparation.
If you are estimating, say so. If your answer is an estimate rather than being an exact answer, please say something like “I think it was about 50 lbs.” Or, “I believe it happened about two years ago.” If you do not indicate in words that you are estimating, you may be held to an answer as though it were exact when that is not what you intended.
Listen to your attorney’s objections. Since workers’ compensation depositions, often follow a standard format there are often few questions to which your attorney will object. However, if your attorney objects to a question, listen to what he is saying and follow his lead. You are required to answer a question unless your attorney instructs you not to. However, if your attorney objects to the form of a question, and, for example, indicates that he believes the question is “vague” or “ambiguous”, the objection is on the record but technically you must still answer the question. A smart defense attorney will ask you to go ahead and answer if you understand the question. Even if you think you do understand the question, you should request that the question be rephrased if your attorney just said it was ‘vague” or “ambiguous.”.
How Is My Deposition Testimony Used?
To look you over. Perhaps the most important use of a deposition is that the attorney has the opportunity to see you as a human being. Before your deposition the attorney for the insurance company has only read about you in medical reports and investigative reports. Your deposition gives the defense attorney an opportunity to see you as a person and to evaluate whether you seem like a believable, honest, articulate witness or whether you will struggle to present your side of the story. The more you appear to be at ease and confident in the truth of your testimony and the better able you are to answer the questions asked in a straight forward and believable manner, the better chance we have to settle your case when the time is right.
To “impeach” your testimony at trial. If you testify at your trial differently than you testified at your deposition then the attorney will point out to the judge that your story has changed. Since you are under oath both at your deposition and at trial, this will cast doubt on the truth of your testimony. When you receive your deposition transcript, you should keep it in a safe place and review it thoroughly before the trial so that there are no contradictions in your testimony. We will also provide you with your medical reports and you should review them in comparison to your deposition testimony to be sure that what the doctor reports that you told him/her is the same thing that you have testified in your deposition.
As a basis for investigation. The deposition provides the defendant with your side of the story. They will then try to check the facts which you have presented in hopes of finding that you are incorrect. For instance, if you have told them about a traffic accident several years before your work injury, they will get the records. If the accident was only months before your work injury or if you injured parts of your body that were also injured in your work injury and did not talk about this in your deposition then we will have trouble in trial.
To “set you up.” Sometimes your deposition will be taken after the insurance company has already investigated you and secretly videotaped your conduct. If you are asked in your deposition whether you ever work on your on car or your neighbor’s cars and you indicate that you have never done so, our case will be in big trouble if they already have films of you working on a car. This is why your attorney continues to advise you to “never say never.” If they have films of you carrying out the garbage and you tell them that you “never” carry out the garbage, then you will be shown to be dishonest even if that was the only time you ever carried out the garbage. For this reason you should make it clear that you may be able to actually perform some activities which cause you pain. If you have carried out the garbage a few times and found that it caused you to be in great pain for several days, that is what you should testify.
Before you appear for your deposition testimony or for your appointment to prepare for the deposition with your attorney, you should make a list of any questions you have for your attorney and make a list of all previous injuries and medical providers. It would also be helpful if you make a list of all previous employers. Do the best you can. Do not make yourself crazy over this list. Just accumulate whatever information you have readily available. You do not need to make too rigorous an investigation.
Remember, relax, do not worry, tell the truth and you will do fine.
(c) Robert S. Havens, 2015
This article is for general information, and not meant as specific legal advice. You should always see an attorney for specific legal questions.