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| | Marathon Depositions Must Now Learn To Sprint
By Jorge Alexandria - September 21, 2012
On Monday, September 17th, California Governor Jerry Brown signed a measure limiting the length of depositions to no more than seven hours in an effort to spare litigants from marathon questioning sessions. The new law says that, unless ordered by the court, a deposition in a civil case shall be limited to one day of seven hours. The court shall allow additional time if needed to fairly examine the deponent, or if the deponent, another person, or any other circumstance impedes or delays the examination.
To date there have been no time limits on depositions of expert witnesses. This new law takes effect in January 2013 and will apply to civil as well as workers’ compensation cases. It seeks to protect sick and elderly deponents. In one highly publicized case, a litigant, an injured worker, with advanced mesothelioma died of cardiac arrest earlier this year shortly after completing his 25th hour of deposition, which was conducted over several weeks.
A deposition in a workers’ compensation case is the opportunity to question an injured worker, witness, or medical provider, under oath, regarding the circumstances resulting in the alleged occupational injury or disease. Depositions are transcribed by a court reporter for future read-back at a subsequent hearing or trial. Deposition testimony is often helpful for a number of reasons. First, it allows the self-insured employer’s or the employer’s insurance company’s attorney the opportunity to
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... if an injured worker "changes his story" at trial regarding how he was injured, deposition testimony can be used to impeach him during cross-examination... |
discover facts not previously known, such as the identity of a doctor who treated an injured worker or the specifics of the injured worker’s medical history. Second, deposition testimony can be used to contradict or impeach an injured worker or witness’s testimony at trial in order to bring their credibility into question.
For example, if an injured worker “changes his story” at trial regarding how he was injured, deposition testimony can be used to impeach him during cross-examination by showing that the injured worker has given inconsistent answers during deposition and at trial. Lastly, deposition testimony can be useful in determining the value of a case for the purpose of settlement.
Often times, however, depositions are not used to find out the truth but rather as a witch hunt to exhaust and wear the injured worker down by zealous opposition lawyers. Young lawyers, straight out of law school, can be especially tough, like Rambo or a loose cannon, as they can be vituperated by the partner if their volley fails to cover everything. There are also strategic reasons for waiting for the end of an eight hour deposition, when claimants are jittery, to ask key questions where often times injured workers misspeak and that is used against them. Some say defense attorneys even take delight and become belligerent, abusive, badger and attempt to intimidate the claimant or twist his/her words to suit the insurance carrier’s case. In their minds this is a game of chess.
In fairness to the other side, there are legitimate reasons to go beyond the seven hours. This is true with long tenured workers or where you have 25 to 40 years of personnel records to review. Also, there are cost conscious employers out there who don’t need their attorneys taking more than seven hours in what could be done in three. There is no reason to waste everyone’s time with questions that have nothing to do with the case. For reasons unknown the California Chamber of Commerce opposed the bill as did the California Judges Association who worried that there would be a lot of motions to increase time.
The measure as passed brings California in line with federal deposition laws which also contain a seven hour time limit. As depositions become shorter the examination at trial should become proportionately shorter as well.
Jorge Alexandría is a U.S. Army veteran who received his B.A. in Political Science from Cal State Los Angeles, and graduated from Cal Poly Pomona with a Master’s in Public Administration. He holds both a California Workers Compensation Claims Professional (WCCP) designation and the State of California’s Self-Insured Administrator’s License. With more than 20 years industry experience, including various leadership positions, he is a leading expert in the field of risk management. He currently practices federal workers’ compensation of maritime interest. He can be reached at Riskletter@mail.com. The views and knowledge expressed in this article are Jorge Alexandría’s alone.
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