You have filed a workers’ compensation claim on a disputed case and then you get a letter from your lawyer indicating the adverse attorney has scheduled your deposition. Bad Perry Mason re-runs come to mind. You get unwanted advice about how to testify from various friends and relatives. You have lots of questions. First and foremost – you wonder whether the other attorney is allowed to even take your deposition.
The answer is yes. Although the Rules governing discovery in workers’ compensation cases suggest that an order is required for a deposition, the usual practice is that discovery depositions of injured workers are routinely allowed in contested cases. If no litigation is pending, however, you may have an argument that you don’t need to give one.
A deposition is sworn testimony in front of a court reporter. In other words, the other attorney gets to ask you questions about your case and other background information while your attorney listens. If appropriate, your attorney can object to the questions asked.
A lawyer takes a deposition for three basic reasons:
- To find out facts;
- To pin a witness down; and
- To get a sense for how the witness presents.
It’s important to keep these three underlying reasons in mind when giving your own deposition. Although every lawyer will give you a different set of instructions, the following is an outline of what I tell my clients before their deposition:
- Tell the truth: it’s the right thing to do, it’s the easiest thing to do, and the other side will find out anyway.
- Don’t volunteer. In other words, only answer the question that was put to you. Don’t go beyond the question when giving an answer. “Minnesota-nice” isn’t going to get you anywhere when you are giving a deposition. If you talk too much — it usually comes back to haunt you in the end.
- Make sure you understand the question: there are many reasons a witness does not understand the question - if this occurs, simply ask for the question to be repeated or rephrased. Don’t answer something you did not understand.
- Don’t guess. This rule is almost as important as telling the truth. If you know the answer, give it. If you can make a reasonable approximation, then do that; however, if you don’t have a clue then simply state something to the effect of, “at this time I do not recall.” Remember, the other side is trying to pin you down, if you guess at answers you don’t know, you will not help your case.
- You are on your own once the deposition gets started. In other words, your lawyer is sitting next to you listening to your testimony. While your lawyer can object to improper questions, it is not your lawyer’s job to give you information on how to answer questions. You need to testify to the best of your own ability.
- Stick to your story. Some people find giving a deposition to be both confusing and unnerving. You get lots of different questions from a variety of angles. Regardless, as a witness, you know what you saw, felt, heard or tasted. Don’t be afraid to stick to your guns when asked if you are sure or if you might be mistaken.
Obviously, each deposition is different. Before your deposition, your lawyer should spend some time with you reviewing the important information and the questions that are likely to be asked. One final thought: if you are asked questions about a document, then make sure you review the document before you answer the question.