The most dangerous part of a workers' compensation case is your deposition - Tom's golden rules will help you survive it.
The most dangerous part of a workers’ compensation case is your deposition. A deposition involves giving testimony under oath. Serious consequences face those who fudge the facts. Over the years, I have had one client convicted of a felony and seen dozens have their cases ravaged for giving inaccurate testimony. Make no mistake; a deposition is like being in a court of law without the judge and jury. Misrepresenting facts to obtain benefits in a workers’ compensation action is a felony. It exposes you to criminal and financial penalties. There are simple techniques for surviving the process, even if you are a rookie.
Tom's Seven Golden Rules for Giving Shark-Proof Deposition Testimony
1. Avoid absolutes in your responses
Concerning questions regarding past medical conditions or workers’ compensation claims, never say never or issue a flat out denial. It is common for people to innocently forget or misrecollect past medical conditions or events.The trick is not to let a defense attorney turn innocent misrecollection into a tool to discredit you. See #3, #4 and #5 below.
2. Do not volunteer information
This is the prime directive, bucko! A deposition should not be treated as your opportunity to convince a defense attorney what a nice person you are and what a great case you have. Understand that their goal is to reduce the value of your case. Period. Answer their questions honestly and as briefly as possible. Then, stop talking. Look the deposing attorney in the eye and wait patiently for their next inquiry. If you are gabbing away, you will see me to your left fidgeting nervously in my chair. That is when I call for a bathroom break, haul you out and get you back on track. Some cases contain questions that are “case killers.” If the defense attorney forgets to ask you one, that is not your problem.
3. Never Guess
If you do not know the answer to a question, a good response is “I don’t know” (Duh). It is a great answer because if you start talking about things that you have not observed, felt, heard or tasted, you are guessing. You must have a factual basis for your response. Guessing can get you into trouble. A deposition is not an intelligence test. If you honestly do not know, be proud, hold your head high and claim ignorance.
4. Pretend your life has been on video tape
Quite frankly, this is what scares the hell out of me as an applicant’s attorney. People innocently exaggerate, or they simply forget what they have done in their day-to-day activities. They testify to a certain set of facts and then, bam! Two weeks down the road, a CD of hours, weeks or days comes in completely contradicting their testimony. At its worst, there could be a referral to the local District Attorney’s Office. At its best, the video is sent to the evaluating doctor who will downgrade his or her opinion of permanent disability. So, never answer in absolutes. Statements like, “I could never do that” will be used against you down the road. It is the rare person that cannot do a particular activity even if injured. The defense does not care if you took medication to do the activity or if it hurt you like crazy. If you can physically do the activity you are being questioned about, your testimony is, “Yes I could do it, but it would probably be painful.” The most important quality you bring to the table is your credibility. I can prove things that are not susceptible to scientific certainty if a judge or a doctor be- lieves you.
5. Be scrupulously honest about your medical history
The Insurance Defense Complex has broad subpoena powers. If there is evidence out there of a pre-existing condition, injury, workers’ compensation claim or personal injury suit, they will find it. Again, do not answer in absolutes. If you cannot recall that pre-existing back injury, the answer is not a flat out denial (i.e., “no”); it is, “I do not re- call if I had a pre-existing back injury.” I cannot tell you how many clients I have had with huge pre-existing medical histories that simply could not remember all their pre-existing conditions. They answered questions about these conditions with a flat out “no” and looked silly (or worse, untruthful) when they were painfully pointed out to them in the medical record. It is “OK” to be honestly vague.
6. Make sure you understand the question
Some defense attorneys ask a lot of un- scripted, off the cuff questions. If you do not understand them, feel free to advise them of that fact. If you answer that question without clarification, the court will assume you understood it.
7. Understand that the defense attorney is not your friend
Most defense attorneys in Northern California are cool and are just doing their job. Normally, you will see me chatting it up with them. This is simply because we have been doing this stuff together for a couple of decades and we are often working up ideas on how to expedite your case.This is not Southern California where applicant and defense attorneys mindlessly fight over everything. While I have outstanding relationships with most of my defense colleagues, I always have my hand on my wallet when they are taking my client’s deposition. Conduct yourself accordingly. If you would like to dive a little deeper into technique, you can download a free copy of the Workers Compensation Survival Manual here by yours truly. You will find a much more detailed discussion of all of this in Chapter 13. Or you can call our office and request a hard copy be mailed to you.
If your number has come up and your deposition has been set, rest assured that I will be there to your left…stridently protecting your interests. Deposition survivors always get the “almost famous” LLG “I Survived My Deposition” coffee cup. (If you are not gabby, you might even get two).