7/5/2017. Depositions & Techniques That Impact Settlement of a Claim

Transcription

1 Depositions & Techniques That Impact Settlement of a Claim 1

2 I. Deposition of an Injured Worker Realities Applicant Meeting with AA 1 st or 2 nd Scary if first time may need time to process No or Little Income Timing of Deposition I. Deposition of an Injured Worker Send a Message Deposition Benefit Delivery Deposition Case Valuation Be Real to Be Ready Settlement Pre-Deposition 2

3 I. Deposition of an Injured Worker Settlement Pre-Deposition Captive Audience Present Offer Openly - Recite Dollar - Recite Willingness Time with AA Risk in Deposition Proceeding - Apportionment - Inconsistencies - Subrosa Excellent Opportunity but You have to be Ready I. Deposition of an Injured Worker Settlement Post-Deposition Follow-up You never know if a planted seed has blossomed Deposition Exposes Unforeseen Case Weaknesses to AA 3

4 II. Deposition of an Injured Worker Client Preparation Explain deposition process Address specifics of client s case Address potential issues > Prior injuries > Apportionment > Factual disputes II. Deposition of an Injured Worker Pre-Deposition Discussions Settlement discussions with DA Discovery demands > Client s recorded statement > Investigator reports > Witness statements Benefit demands AME / QME 4

5 II. Deposition of an Injured Worker During the Deposition Dealing with a nervous / talkative client Dealing with a hostile DA Objections > Request for Driver s License / ID > Immigration status > Privacy concerns Employer rep at deposition AA questioning the client Ending the deposition II. Deposition of an Injured Worker Post-Deposition Have a plan - Identify next step(s) in the case Explore settlement 5

6 II. Deposition of an Injured Worker Post-Deposition Have a plan - Identify next step(s) in the case Explore settlement III. Deposition of Witnesses Settlement Advantages Pressure on Applicant Evaluate Witness Credibility Demonstration of Thoroughness Settlement Disadvantages Applicant not there and not involved Fear the Unknown Expose Poor Employer Practices Raise Unforeseen Issues Create New Claims or Claimants 6

7 IV. Deposition of Witnesses Identify specific need to depose a witness Cost / benefit analysis Deposing witness vs. trial testimony V. Deposition of Employer Representatives Your Employer - General Rule - Never Depose Your Employer Representative - Get your information directly and under privilege - Exceptions > Psyche Case Good Faith Personnel Action Defense > If you are sure there is no risk from AA examination and their testimony is advantageous somehow. 7

8 V. Deposition of Employer Representatives Subsequent Employers Can Apply Pressure to Settle - Information on activities, function and impairment - Information on earning capacity - Reality Most claimants don t want their current employer to know they are embroiled in litigation over a workers compensation matter with a prior employer, it looks really bad. V. Deposition of Employer Representatives Prior Employers Apportionment Function/Impairment Impact on Industry Reputation 8

9 VI. Deposition of Employer Representatives Identify specific need to depose employer representative Possible 132a violation Deposition as a settlement tool - Can push pressure on defense to settle VII. Deposition of Treating Doctors & Evaluators Settlement Advantages Can cure a Record and Impacts an Opinion of a treating physician. Little room for settlement discussion - The Applicant is not there. - Most AA s focus there review on the medical issues not case values 9

10 VII. Deposition of Treating Doctors & Evaluators Settlement Disadvantages Can Create Issues Cured disputes can reduce settlement flexibility Defense Costs VIII. Deposition of Treating Doctors & Evaluators Identify need for deposition - e.g. address PD, TD, causation, apportionment, etc. Hostile vs. friendly deposition 10

11 VIII. Deposition of Treating Doctors & Evaluators Strategic considerations Can give defense opportunity to shore up their case Doctor can flip in deposition Can create unforeseen issues Can muddy the record / lead to more discovery (and delays) This may help facilitate settlement Settlement discussions with DA 11