In North Carolina and Virginia, may times the insurance company for the employer will want to take your deposition. A deposition is on oral question and answer session which is recorded so that it can be transcribed and the discussion can be preserved. It is done under oath, just like you were in the courtroom. In most work injury depositions, the insurance company attorney will question the worker and your worker’s compensation attorney will prepare you for the deposition. Preparation means explaining what questions the employer’s lawyer will likely ask so that you aren’t surprised when the real deposition takes place and also going over some general tips to help the deposition go smoother. By reviewing the deposition with you in advance, and using the attorney’s experience to prepare you for the deposition, the lawyer will also explain many practical suggestions so you can express your answers in a way that can best help your cause.
In most depositions, that lawyer for the insurance company is polite and the questions are fairly straightforward. Occasionally, that is not the case. Either way, you should treat the deposition as a business meeting. No matter how nice the defense lawyer is, he or she is not your friend. Defense lawyers will try and derail your case, if given the opportunity to do so.
Where and How Does the Deposition Take Place?
The deposition normally takes place either at your lawyer’s office or the law office for the attorney for the insurance company/employer. The questions and answers are usually in a lawyer’s conference room and just you, your lawyer, the insurance company lawyer, and the stenographer or court reporter are present. Occasionally, particularly if your lawyer will also be deposing your supervisory personnel, a company representative may be present. Sometimes, albeit rarely, the insurance adjuster is present, but they will not be able to ask you any questions under oath. Only the defense lawyer and your own attorney can do that.
If you don’t currently have a lawyer, we strongly suggest retaining an experienced worker’s compensation lawyer before heading into a deposition. Please do not do that on your own. You may very well risk causing tremendous damage to your case.
Remember, it does not cost you any money up front to hire a workers compensation lawyer. You will not have to stroke a check. Attorney’s fees in workers comp cases are controlled by the Industrial Commission in North Carolina or the Virginia Workers Compensation Commission.
In addition to thorough preparation of you prior to the depo, your lawyer may object to some of the questions that are being asked. You lawyer can also ask you questions that can help clarify your answers once defense counsel has finished his or her line of questioning.
When you answer the questions, you will be under oath. Testifying under oath means that you swear to tell the truth and to answer the questions to the best of your ability. The court stenographer is the person who will swear you in.
What is the purpose of the Deposition?
The deposition of a Claimant or Plaintiff in a Workers Compensation Case Generally has Four Purposes:
- To obtain information from you directly about the facts of the accident, your treatment and injuries, witnesses you may have, and your course of treatment.
- To “lock you in” to your testimony in relation to these things under oath, so that you cannot say something different at hearing. If you do, you will be confronted with your deposition statement by defense counsel on cross examination.
- To determine what kind of witness you are. Are you someone the Deputy Commissioner is likely to find credible?
- As a tool to help the defense attorney evaluate the claim and make recommendations to the insurance adjuster about whether to make offers of settlement prior to hearing, whether to “cave” and agree to the Award, or whether to gather the troops and push on to hearing.
The types of questions that will be asked at the deposition
The insurance company lawyer will generally ask you the following:
- Questions about your background. Sample questions include:
- When were you born?
- Where do you live?
- Tell me about your education – what schools did you attend?
- What is your work history – which jobs have you had, where, and for how long? What kind of work did you do in those jobs?
- What were the physical requirements of these jobs?
- Do you have any criminal history record?
- Have you filed any prior worker’s compensation claims?
- Questions about prior injuries? Here, the insurance carrier lawyer will try to see if there’s a way to argue that your current injuries were related to a prior accident – either at work or away from work. If you answer yes to these questions, the attorney for the employer will ask follow-up questions about when the injuries occurred, what doctors you say, what treatment you had, whether you had to stop working, and whether the injuries resolved.
- Questions about the workplace accident? In North Carolina and Virginia, you do not have to show your employer is at fault for the accident. Fault is not an issue. Still, the insurance carrier lawyer will ask questions about the accident to try to understand how the accident caused your injuries. If your injuries or a workplace illness occurred over time vs at a specific point in time, you may not have a case.
And even though the employer does not have to be at fault, sometimes there needs to be a defect if you were injured in a way that is a common way to get hurt. For instance, in Virginia, if you simply missed a step while walking down a set of stairs, that is not a risk of employment and you have no case, unless your shoes were slippery from work materials, you were rushed with work items in your hands, or the step on which you slipped was somehow defective. The bottom line is that in a contested case, it is very important to go over these facts with your attorney so that you do not inadvertently say something that could ruin your claim.
In North Carolina, there are somewhat stricter provisions that generally require some type of slip, trip or fall—something unusual, that must occur in order for you to have suffered an “accident.” This will be explored by defense counsel, particularly if you have a contested claim.
- Questions about your medical treatment. Here, the lawyer for the employer will go through each and every hospital you went to, each doctor you saw, each medication you took, and each medical device you needed to use. You generally do not have to remember exact dates, although it is important to have a decent idea of the sequence of treatment.
What is often most important here is what you told your doctors or other health care providers about your injuries. If there are inconsistencies in the statements you made to doctors and hospitals about how you were injured, or which body parts you injured, then these inconsistencies, if not properly explained, can ruin your case. A good workers comp attorney will point out any of these inconsistencies and go over them with you in preparation for the deposition so that they do not derail your claim.
The defense lawyer will begin questioning with the first treatment and then go through your treatment, usually in chronological order or by physician, until the current time. He/she will also go over your long-term prognosis and how you are feeling now, as well as your plans going forward.
- Questions about your current work ability. The lawyer will ask many questions about your current ability to work, your limitations, and your difficult working. Sample questions might include:
- Have you tried to return to work?
- What is stopping you from working?
- Do you think you could work if the employer changed your work conditions?
- For your particular job, the lawyer will likely ask questions about your functional limitations such as your ability to lift or push above certain weight limits, your ability to sit for long stretches of time, and other questions based on current work injuries.
Some common deposition ground-rules
Some of the guidelines your worker’s compensation lawyer will go over with you before the deposition are:
- Wait until the full question is asked before your answer. You need to wait for several reasons:
- Your lawyer may object to the question. You don’t want to answer a question which may hurt your case.
- By waiting you make sure you understand the question and that you don’t answer to quickly. Depositions aren’t a race. You should think about each question before you answer it.
- The court reporter needs to type the answer.
- Don’t volunteer. You should only answer the question that was asked and your answer should be as short as possible. The attorney for the insurance company is not your friend. He/she is looking for information to use against you. The less you say at the deposition the better. The insurance company lawyer can always ask another question if he/she wants to find out more. Your lawyer can ask questions too to clarify any apparent confusion. As someone who has been doing this for 27 years, and attended thousands of depositions, I can tell you this: the more you say, the longer the deposition will last.
- Understand that you need to give an oral response. A nod of the head, a mumble, or pointing can be misconstrued. An oral yes, no, or verbal answer makes clear to everyone what you meant. Remember, your answers may be used at the hearing or in legal briefs so your answers need to reflect what you really meant. And do not say “uh-uh” or “uh-huh”. Yes or no makes it much clearer.
- Don’t guess. Make sure you understand the question. Also make sure your answer is accurate. If you don’t know then it is perfectly Ok to say that you don’t know or you cannot recall, as long as that is not the answer to every question.
- Be alert to questions that might violate your attorney-client privilege with your lawyer or are repeated questions because the defense attorney wants a different answer. If your lawyer thinks a question violates this confidentiality requirement, your lawyer should object.
- Keep calm. The insurance company lawyer is trying to see what kind of witness you will be at the hearing. The more you appear relaxed, confident, and credible, the better chance you have of settling your case. If you easily rattle, or appear angry, the insurance company may be more likely to consider requesting a court hearing.
After the hearing, your lawyer will get a copy of the deposition transcript. The lawyer will review the transcript with you to confirm that it is accurate – or that changes should be duly noted.
Make the call to an experienced Virginia or North Carolina workers’ compensation lawyer today
Preparation is the key to most work injury cases. The more you and prepared and the more your lawyer has all the necessary information, the better chance you have of winning your claim. A skilled worker’s compensation lawyer like Joe Miller has handled many depositions. He can firmly guide you through the deposition process. He’s helped thousands of injured workers. For help now, please phone lawyer Joe Miller at (888) 694-1671 or use his contact form to schedule an appointment.
