What is a Deposition?
 
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 by
making a false statement in order to obtain benefits.
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 examen" you.
WHAT ARE THE "GROUND RULES" FOR A DEPOSITION?
A. 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."
B. 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.
C. 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.
D. 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.
E. 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.
F. 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:
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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 ADVISE 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, 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.
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.
BE PREPARED
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.
© Robert S. Havens, 2005
This article is for general information, and not meant as
specific legal advice. You should always see an attorney for specific legal
questions.
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