After taking more than 2,000 depositions over 25 years, I have realized that the essential questions and strategy are normally not employed until it is too late. Many applicants' attorneys refuse to allow a second deposition, excluding those who are just in it for the LC 5710 fees.
My first several years taking depositions, and as an astute student of the importance of thoroughness, I would make sure to get all of the applicant’s prior addresses, employment, spouses, kids, grandchildren and hobbies. Between that and the admonition, I would have very little time to get into the essentials. Although these questions may be helpful for sub rosa and apportionment, it is merely using a screwdriver when a hammer should be employed.
The purpose of the deposition is much more than a fact-finding mission. It is really a “clue” to your applicants' attorney and to the panel qualified medical examiner who will read the transcript, of the defenses of the claim and the embarrassing history that may be present in the personnel files.
In many cases, the claim resolves at deposition, without expensive litigation when an initial settlement offer is received, and a carefully reviewed personnel file.
My best leverage has always been a full review of the write-ups and disciplinary actions. This is an excellent opportunity for impeachment of credibility. I have had many applicants deny write-ups and discipline, only to later miraculously remember.
Just as with the ISO and prior injuries, the question arises as to whether I would rather “trap” the applicant into lying for trial, or use the information for settlement. These are two completely different ideologies and you have to choose the best strategy for your particular situation.
If you know the case will go to trial, I obviously would not correct the applicant’s testimony and let the lie “linger.” However, due to the Workers' Compensation Appeals Board’s disinclination to enforce a post-termination defense on cumulative trauma claims, most of these cases either settle at deposition or will go to a PQME instead of trial.
Consequently, I want the PQME to be well aware of inappropriate incentives to bring an action and to appreciate all of the inconsistencies and prior injuries.
The first PQME reports I am receiving on post-term cases inevitably indicate that the applicant is temporary partially disabled or temporarily totally disabled. In addition, they employ “chart lore” and often merely rubber-stamp the PTP findings on disability status.
Success in resolving these claims at deposition or influencing the PQME who reads the deposition transcript will require a focused approach. Here are some obvious and essential questions:
Take breaks in your deposition after discussing embarrassing write-ups, terminations, prior injuries and false testimony, and insist that the applicant’s attorney speak with the client and engage in good-faith settlement negotiations with you. If she refuses, keep the prior claims and personnel file issues coming, take another break and attempt settlement negotiations again. Sometimes, it may take three breaks to convince your opposition, yet you will get it done.
I’ve been using these tactics for decades to keep claims handling very cost-effective, and clients have rewarded me for early resolutions by referring additional files. Using these tactics will help get you more early resolutions to settle cases that otherwise could have the potential to drag on for years.
Glen Young is a partner at Bradford and Barthel’s Woodland Hills office. This entry from Bradford & Barthel's blog appears with permission.
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