If you're seeking workers' comp benefits after suffering a work-related injury or illness, you may have your deposition taken at some point in the process. A deposition is a recorded session during which witnesses answer various questions under oath. Because insurance carriers often depose injured employees as a matter of routine during workers' comp cases, it's likely that you will be called to testify in one of these question-and-answer sessions.
If the thought of being grilled by a lawyer makes your stomach churn, this article may offer some comfort. Being prepared and knowing what to expect can take most of the sting out of the deposition. It also helps to know that when it comes to workers' comp cases, depositions are rarely the dramatic events portrayed in movies and TV shows. More often than not, the lawyer taking your deposition will be polite and courteous, rather than confrontational and aggressive.
What to Do Before the Deposition
If you've hired an attorney, your lawyer should help you prepare for the deposition. With or without a lawyer, you should go over all of your records and personal notes to refresh your memory about the accident, your injuries and symptoms, when you missed work, and the other issues you'll probably be asked about (discussed below).
What Happens at a Deposition
Normally, the deposition will take place in a conference room at a law firm. Although some states already allowed remote depositions by telephone or video conferencing, this has become more common since the beginning of the COVID-19 pandemic. However, many states require that both sides agree to conducting a deposition remotely rather than in person (and some of the rules allowing remote administration of oaths are temporary).
You can expect at least a handful of people to be in attendance (virtually or physically): you, your lawyer (if you have one), the lawyer taking your deposition, and a court reporter. The court reporter's role is to make a written transcript of the deposition, so that it can be used as evidence in the case.
Even though the deposition takes place in an informal setting, you will be testifying under oath, just as if you were in a courtroom. This means that you must answer each question truthfully and to the best of your knowledge. If you lie on purpose, you could be found guilty of perjury. (More likely, it will hurt your workers' comp case if the lie is discovered.) Before the deposition begins, the court reporter will “swear” you in and have you verify that you understand your obligation to be truthful.
The lawyer taking your deposition may begin by giving you a brief overview of the deposition process and general guidelines to follow. After that, the lawyer will begin asking you a series of questions about the following topics:
- Background Information. This includes your name, date of birth, address, educational background, and work history. You might also be asked about whether you have a criminal history or have filed workers' compensation claims in the past.
- Prior injuries. You may be asked about any prior injuries or accidents that you've had. The lawyer will be trying to find out if anything other than your work duties may have caused your medical condition. (But you should know that having a pre-existing condition doesn't necessarily rule out workers' comp coverage for your current injury or illness.)
- How the accident or illness happened. Because workers' compensation is a no-fault system, questions about how the accident happened are usually limited. But you should expect more detailed questions if your injuries or illness developed over a period of time, such as with repetitive stress injuries, or if you're seeking workers' comp benefits for COVID-19 or another infectious illness.
- Treatment. You will be asked to go through the details of all of your medical treatment for the work-related injuries or illness, from your first doctor's visit to any treatment you've had after that. This includes physical therapy, chiropractic care, medications, surgery, and other procedures.
- Current limitations. The lawyer will also ask you about any current limitations that you have as a result of your injuries. For example, you should mention if you still can't lift heavy items, operate certain machinery, or sit or stand for long periods. These questions are especially important because any lasting physical or mental limitations could make you eligible for a permanent disability award.
Guidelines for Answering Questions
There are certain ground rules that you should follow when having your deposition taken. By following these dos and don'ts, you will ensure that your deposition goes smoothly and your claim is portrayed in the best and most accurate light possible. Here are some general guidelines:
- Listen and wait before answering. It's important to let the lawyer ask a complete question before you begin to answer. There are a few reasons for this. First, the question might be different than you think it is. Second, the court reporter needs to type everything verbatim, which will be difficult if you and the lawyer are talking over each other. And third, you need to give your lawyer (if you have one) the opportunity to object to an improper question before you get into the answer.
- Answer clearly, with words. In everyday life, it's natural to answer questions with a head nod or an “uh-huh.” But in a deposition, the court reporter needs to type down your responses, which can be difficult if they are nonverbal. Remember to always answer “yes” or “no” and to verbalize things instead of pointing to them (for example, “my left arm” instead of “this arm”).
- Don't volunteer information. During questioning, you might feel the urge to give a long-winded answer or offer information that you think is important. But one of the most important rules of a deposition is to answer only the question you've been asked. If you can answer a question with a “yes” or “no,” you should do so. If there is something that needs clearing up, your lawyer will have an opportunity at the end of the deposition to ask you questions.
- Avoid guessing. Make sure you fully understand the question before answering. If a question is confusing, it is perfectly acceptable to ask the lawyer to repeat the question or rephrase it. If you don't know the answer to a question, it's fine to say, “I don't know.” And if the question calls for a specific number (for example, how many months you were in pain), you should give an estimate or range (for example, six to nine months).
- Don't share confidential information you've discussed with your attorney. Any private communications with your lawyer are covered by what's known as the attorney-client privilege—meaning you have the right to keep them private (unless you voluntarily share them). In a deposition, lawyers have a lot of leeway in the questions they ask, but they're not supposed to ask you about confidential discussions you had with your lawyer. If this happens, your attorney should step in and object. But just in case, remember not to offer this information.
- Keep your composure. It's important to be polite, calm, and clear when answering questions. The lawyer will be sizing you up, in part, to see what kind of witness you would make. If you come off as a reasonable and credible person, you will fare much better in your case. (And your questioners are more likely to see you as credible when you make eye contact or, in a video deposition, when you look straight at the camera in your device.) If you feel yourself getting agitated during the deposition, you can ask to take a break so that you can collect yourself before resuming.
After the Deposition
Once the deposition is over, you will get a written transcript and an opportunity to make any necessary corrections.
The Role of an Attorney
If your employer's insurance company is disputing anything about your workers' comp claim—including whether the injury is work-related, whether you should have treatment that your doctor has recommended, or whether you have a disability—you should strongly consider hiring an attorney to represent you. If you're called to a deposition, your lawyer will help you prepare for it. At the deposition itself, your lawyer will be there with you to make sure nothing improper goes on—to object to illegal questions, make sure things stay civil, ask questions to clear up anything confusing or misleading from the other attorney's questions, and otherwise protect your interests. (Learn more about what a good workers' comp lawyer should do for you.)