Deposition Mistakes In Worker’s Compensation Cases

June 9, 2015 | Attorney, Matthew Dolman
Deposition Mistakes In Worker’s Compensation Cases Before addressing deposition mistakes in worker's compensation cases, it would benefit you to understand what a deposition is.  A deposition is your oral testimony taken under oath.  A court reporter will ask you to raise your right hand and swear to tell the truth, the whole truth, and nothing but the truth.  Your testimony consists of your responses to questions asked by the opposing attorney and your responses to question asked by your own attorney.  A deposition usually takes place in a conference room.  The conference room will be at your attorney's office, the other attorney's office, or a court reporter's office.  The location is not as important as the testimony you provide.  On one side of the conference room table is the opposing attorney.  On the other side of the table are you and your attorney.  The court reporter is usually sitting at one end of the table.  He or she is constantly typing down everything that is said by anyone in the room. One of the main purposes for your deposition is for the insurance carrier to investigate your claim.  In their investigation, they are interested in determining how your injury (ies) happened, what treatment you received thus far, and what treatment has been recommended for you by the doctors you've been seeing through the worker's compensation carrier.  You may wonder why a deposition is necessary.  You may think that the insurance carrier is already aware of such information.  The carrier is aware of certain facts and information, but rarely do they know everything.  You must remember that there are a number of people involved in any worker's compensation claim; especially when you consider the other side's perspective.  When it comes to the other side's perspective, the “other side,” meaning the perspective of the employer / carrier, you have your employer, possibly a supervisor or HR representative, the adjuster, the physicians providing you treatment, and possibly a nurse case manager.  All those sources of information can provide conflicting, or confusing information to an adjuster.   Asking you questions in the setting a deposition provides is the insurance company's opportunity to hear your side of the story.  Rather than sifting through information provided by numerous sources, you alone are under oath providing testimony concerning your injuries.  You are able to explain what happened, who you reported the accident to, whether you have received lost wages, the amounts, and what treatment you've received, or what treatment you haven't received.  There is no reason to be nervous about the deposition.  We are sitting right next to you the entire time.  We will not allow you to be badgered or unreasonably insulted. Before your deposition begins, you will be given ground rules and instructions.  You will be asked to answer the questions with a verbal response such as a “yes,” or a “no.” In response to a question, do not shake your head affirmatively or negatively.  The reason is that the court reporter can only take down a verbal response.  A headshake cannot be interpreted accurately on the record.  Before you being to answer a question, you must wait for the attorney to finish their question.  There are times when you will be able to determine what the question is before the attorney is done asking it.  You will probably feel compelled to being your answer.  Avoid the urge to interrupt.  It's not an issue of etiquette.  The problem is that the court reporter cannot take down 2 people talking at the same time.  If you try to answer before the question is finished, the court reporter will be unable to accurately take down the testimony.  This rule applies whether you are answering questions from the other attorney or questions from your own attorney.  If you do not understand a question, you will be told to ask for the question to be repeated.  If you answer a question, you will be told that your answer means you understood the question. When it comes to worker's compensation cases, we go through a thorough deposition review with you before you are scheduled to testify under oath.  During your deposition review, the specifics of your case will be addressed.  We will also explain the purpose of certain questions.  Questions will be asked that you may wonder how they could possibly be relevant to your workplace accident.  You will be asked about your educational background and past work experience.  These questions are relevant to determine what transferable skills you have.  You will probably be asked the make, model, and color, of the car you drive.  This question is relevant for the purpose of doing surveillance.  You will be asked about whether you are married and whether you have any children.  These questions are relevant to determine whether you have dependents.  There are others, and we will present you with the questions you can anticipate being asked.  In general, here are some pitfalls and mistakes to avoid:
  1. Never state facts beyond your knowledge.  DO NOT GUESS at what the answer to a question might be.  If you do not know the answer, it is perfectly acceptable to testify, “I don't know.”  Leave the answer at that.  Do not attempt to add anything to your answer.  You may be asked how much something you lifted weighed.  Unless you actually weighed the item and know exactly what it weights, you do not know the exact weight.  You may be asked how far you walked.  Unless you actually measured the distance you went for any kind of walk, you do not know the exact distance.
  2. Provide complete and accurate answers regarding your past medical history. Previous injuries, accidents, and treatment are subjects that people tend to forget.  Even if the accident or treatment was not related to work workplace accident, you have an obligation to provide complete and thorough answers regarding your past medical history.  If you do not recall the exact date of an event, state that you do not recall the exact date of the past event.  A deposition is not a test or quiz where you pass or fail based on your ability to remember exact dates related to past treatment.  However, you can fail in a sense by not providing any information concerning a past accident or injury.  Provide answers that are accurate to the best of your recollection and state that you are providing answers to the best of your recollection when doing so.
  3. Do not exaggerate your symptoms or pain complaints and do not exaggerate your physical limitations. Many people are frustrated by not being able to do what they could before the accident.  If asked what their daily activities are, they may testify with an answer such as, “I hardly ever get off the couch anymore.  I can't do what I want around the house.  I don't do much of anything except stay in my house.”   We understand that such an answer may accurately describe how you feel in response to your current physical limitations.  Your day may differ quite a bit from what it was before the accident.  However, what that answer literally means is that you are essentially immobile and confined to your residence.  If surveillance shows you so much as taking out the trash or walking your dog, you've likely made a false statement under oath that can be used against you.  We will explain how to best answer questions concerning your current physical limitations during your deposition review.  Everyone's case is different.  So, the response to this question will be different for each person's case.
  4. Do not allow opposing counsel to anger or excite you. When you enter the conference room, leave your emotions at the door.  The vast majority of all depositions are concluded within approximately one hour and do not involve behavior or comments from opposing counsel that would be offensive or insulting.  However, if that does occur, do not fall for it.  When your emotions get involved in providing testimony, your answers are no longer the rational logical responses they need to be.
  5. Before you answer, do not try and figure out whether a truthful answer will help or hinder your case. Answer truthfully.  A lawyer may successfully explain the truth, but there is no explaining why a witness lied.  In the eyes of the Judge, untruth devastates your credibility and can preclude your eligibility for worker's compensation benefits.  Remember that your recollection has faded with respect to many issues that may come up during the deposition.  Generally, “not that I remember,” or “not that I know of,” is a better answer than “no,” or the like.  Avoid absolutes.  Do not say, “absolutely not,” “never,” “under no circumstances,” or any other type of absolute or irreversible response.
As explained above, we discuss your deposition with you before it is scheduled to occur.  Generally, we schedule a deposition review one to three days in advance.  We will explain what you can expect and you will be free to ask questions about the process.  It is proper to admit discussing your deposition testimony with your counsel.  Discussions with your attorney concerning the facts in issue occur in every case; consultation is entirely proper and expected.  What was specifically discussed is privileged and protected.  If you have questions about a workplace accident, or know someone who has been injured on the job with questions or concerns, please feel free to have them contact us at or 727-451-6900.


Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has successfully fought for more than 11,000 injured clients and acted as lead counsel in more than 1,000 lawsuits. Always on the cutting edge of personal injury law, Matt is actively engaged in complex legal matters, including Suboxone, AFFF, and Ozempic lawsuits.  Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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