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How to Prevent Harassing
Conduct During Workers'
Compensation Depositions



By David L. Hart, Esq.
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David L. Hart represents injured workers and plaintiffs in personal injury actions, wrongful death claims, and employment related litigation. In a previous article he wrote about distinguishing serious and willful and third-party cases. In this article Mr. Hart focuses on how to prevent harassing conduct at workers' compensation depositions.
   
 
In a workers’ compensation practice, applicants’ attorneys can expect to spend a significant amount of time in depositions defending their clients. Depositions are a necessary part of litigation, and defendants are allowed to explore broad topics including AOE/COE, apportionment, work history, etc. However, many defendants have taken the position that filing a claim opens up every area of an applicant’s life to rapid-fire, repeated questioning on topics unrelated to the claimed injury.

A client who feels harassed by overbroad and inappropriate questioning may feel further victimized by an already flawed workers’ compensation system.

The standard of discovery at a workers’ compensation deposition is the same as in civil depositions. (See Labor Code §5710). Defendants have a right to pursue discoverable evidence just as in a lawsuit filed in Superior Court. For an excellent discussion on the scope of discovery at depositions, please see The Rutter Group’s Civil Procedure Before Trial Chapter 8 Section 8E.

The purpose of this article is to focus on a limited list of harassing conduct that seems to be happening more and more at workers' compensation depositions.

A defense attorney who does any of the following is harassing an applicant:

 
Many defendants have taken the position that filing a claim opens up every area of an applicant’s life to rapid-fire, repeated questioning on topics unrelated to the claimed injury.
 
1. Asks repetitive questions

Attorneys often try to get a specific answer from a witness by asking the same question with little or no variation. Questions are repeatedly asked to attempt to minimize the applicant's pain and symptoms. For example, the questions might start asking generally about pain in the knee and then attempt to get a different answer by throwing in a few extra adjectives. The effect is to make the witness feel like the prior answers were wrong and tie him or her to responses that minimize or trivialize the injury. The applicant will be frustrated and feel like their answers are inadequate.

The simplest objection to a repeated question you are confident has been asked and answered is to demand the attorney stop without a response by the applicant. If there is a dispute as to whether it was asked previously the parties should attempt to resolve the dispute. If defense counsel takes the position that they are entitled to ask the same question again, consider suspending the deposition to seek judicial assistance. If the record is clear, the judge should find that asking the same question again is harassing and not likely to lead to discoverable evidence.

 
Attorneys often try to get a specific answer from a witness by asking the same question with little or no variation.
 
2. Threatens a deponent with criminal or administrative proceedings

Rule of Professional Conduct 5-100 states:
(A) A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.

While an attorney may give the standard admonition that lying to obtain workers' compensation benefits is a crime, specific threats toward the witness or their families is unethical and subjects the questioning attorney to California State Bar discipline. An attorney defending a deposition should be especially vigilant for veiled threats that make a witness feel criminalized for pursuing a work injury.

 
While an attorney may give the standard admonition that lying to obtain workers' compensation benefits is a crime, specific threats toward the witness or their families is unethical.
 
3. Asks overly personal questions that are beyond of the scope of the claim being made and invade the privacy rights of individuals who are not a party to the proceeding

Many defense attorneys take the position that an applicant has waived almost all privacy privileges by filing a workers’ compensation claim. Appellate courts have repeatedly held to the contrary. In Palay v. Superior Court (1993) 18 Cal. App. 4th 919, the Court of Appeal declined to allow discovery of a mother’s treatment prior to shortly before pregnancy. Her child sued his physician in a negligence case associated with failing to detect a heart defect when he was born. In another persuasive ruling, the Supreme Court in Britt v. Superior Court (1978) 20 Cal. 3d 844 opined that the questioning had to be related to the specific body systems that had been placed in issue.

 
The Constitutional right to privacy is not waived by the filing of a workers' compensation claim
 
4. Intimidates or bullies a witness

There are many good defense attorneys who zealously advocate for their clients. Unfortunately, some attorneys are known for badgering and bullying applicants. This can range from loud shouting to threatening mannerisms. These attorneys may be on a personal crusade to attack every single applicant. Attorneys like this usually are preceded by their reputation, and judges grow tired of having to intervene. It is important in this situation to repeatedly identify the bullying conduct and document it on the record. In addition, documenting will preserve the dispute for judicial intervention if needed and show the judge you attempted to resolve it informally.

 
Some attorneys are known for badgering and bullying applicants.
 

5. Attempts to have the witness testify in areas that are within the scope of experts

Defense attorneys sometimes attempt to have an applicant provide opinions as to the extent and cause of their injury. This can confuse an unsophisticated witness who is then often lambasted for any problems with their explanation and countered with complex medical records and terminology. One way to point out this questioning is to ask the defense attorney:

How is he/she supposed to answer that question before we send them to medical school?” While this is not a formal objection, it usually illustrates the problem with a question.

When a defense attorney engages in inappropriate conduct, an applicant’s attorney may:

  1. Demand that the defense attorney desist the inappropriate conduct.
  2. Instruct the witness not to answer.
  3. Suspend the deposition and seek judicial relief.

For an excellent discussion on the role of the WCAB in resolving deposition disputes, see Allison v WCAB (1999) 72 Cal App 4th 654.

 
Defense attorneys sometimes attempt to have an applicant provide opinions as to the extent and cause of their injury.
 
Attorneys are required to attempt to resolve and frame the disputed issue to allow the WCAB to rule on it. Simply providing blanket objections is a poor practice that could subject an attorney to sanctions. To preserve a record, the objecting attorney should note and carefully describe the conduct that is objectionable. Going in to as much detail as possible also shows a judge you had a very specific problem and attempted to be reasonable to resolve it without “bothering them.”

 
Simply providing blanket objections is a poor practice that could subject an attorney to sanctions.
 
A wise attorney remembers the lesson of my grandmother: “Keep your words soft and tender, you never know when you might have to eat them.”

Every single word at a deposition is transcribed and may be viewed by a judge who is the ultimate fact finder. While realistically this does not happen that often, as most cases settle, good practice dictates that every deposition is treated as though a judge may have to read it and rule on objections.

 
Good practice dictates that the attorney treat every deposition as though a judge may have to read it and rule on objections.
 
Law Office of David L. Hart

1750 Francisco Blvd #8
Pacifica, CA 94044
Phone: (650) 355-3000
Fax: (650) 355-0250

801 Tuolumne Street
Vallejo, CA 94590
Phone: (707) 553-2000

David@bayareacomplaw.com
www.bayareacomplaw.com