How to Give Deposition Testimony - Part 1

Saturday, October 26, 2002 | 0

A deposition of the injured worker is often taken in contested workers' compensation claims. While it is an important event, there isn't any reason to be nervous about giving deposition testimony, however there are certain "rules" you should be aware of to ensure that your best testimony is recorded during the process. In this first of two articles we will review what a deposition is, and what occurs. The next article will review potential pit-falls to avoid and common sense tips for giving deposition testimony.

A deposition is the recording of testimony under oath in a semi-formal setting with a court reporter, your attorney (if represented - highly recommended), and the other side's attorney (or more if there are multiple parties). It is a favored technique in the discovery process of a legal proceeding, such as a workers' compensation claim, because facts can be obtained relatively quickly.

While on occasion deposition testimony is video-taped, it is very rare in a workers' compensation case because of the expense involved. Consequently, facial expressions, tone of voice and other nuances are not recorded. This can be either favorable or unfavorable depending on your position.

Only the attorneys are allowed to ask questions, and the questions must be in good form. One of the reasons why you should be represented by an attorney at a deposition is because an attorney is trained to know when a question is of poor form, or is not legally proper.

Before you are asked any questions, the Court Reporter will administer an oath to you. This is an oath to tell the truth, the same oath you would be given by a Judge if you were testifying in a Court of law. Taking the oath carries with it penalties for perjury if you knowingly testify to something that is not true. Failure to remember is not perjury.

After you have sworn to tell the truth, the opposing attorney will begin asking you questions. The questions and your answers will be recorded by the Court Reporter who has to listen to the parties and understand what they are saying, so speak clearly and audibly. Answers such as "uh huh", or "uh uh" have no translation to the Court Reporter, and may be misinterpreted, so use real words in your testimony.

Later, a transcript (booklet) with all the questions and answers will be prepared and you will be given the opportunity to make corrections and changes. But, if you change the substance of an answer (i.e., change "yes" to "no", or "I don't know" to a more specific answer) the opposing attorney will have a right to comment on the change to challenge your credibility that can damage your case. So, listen to each question very carefully, pause before you answer to ensure that the attorney has finished the question so you know what you are answering, and be sure that you can live with your answer.

Do not answer any question you do not understand. If you answer a question without indicating that you don't understand it, the opposing attorney (and ultimately the judge) will assume that you understood the question and later comment on this should you change your answer when you review the transcript. If you have any confusion about a question make sure the opposing attorney is made aware of it. You can always request a break in the deposition to confer with your attorney.

Although no judge is present, your deposition is a solemn procedure and there is little difference between the testimony obtained at a deposition and testimony elicited in a Court Trial.

Your deposition can be very significant to your case. The opposing party has scheduled your deposition for three reasons. First, the opposing attorney wants to find out what facts you know about your claim and prior injuries. In other words, they are interested in what your version of the incident is now and what it is going to be at the time of trial. Second, they want to pin you down to a specific version so that you will have to tell the same version at trial. Third, and this is perhaps the most important reason, they hope to catch you making an inconsistent statement because if they find any inconsistency, they can later argue at trial that you are not a truthful person and therefore NONE of your testimony should be believed on any of the factual issues, even the critical ones.

As a consequence of that third reason, it is absolutely imperative that you be truthful. Failure to reveal a prior injury when asked is worse than truthfully admitting to it. Many claimants make this mistake, and conceal prior injuries or claims thinking the defense won't find out. WRONG! Insurance companies and their attorneys have many, many resources. If you had a prior claim they WILL find out about it.

Don't lie about what you can or can't do. Insurance companies use "sub rosa" evidence, films taken clandestinely depicting you in a natural setting where you are unaware of others watching, in the hopes of catching you performing a physical activity that you should not be able to do because of your disability. Disability is a factor decided by the doctors. Embellishing about your disability in a deposition will not help your case and in fact may damage it.

The next article in this series will review certain "rules" and what to watch out for in a deposition.