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Deposition “Foe-pas”: You Can’t Make This Up

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By: Betsy Campo, Partner, Gainesville

 

Ah…the claimant’s deposition–my favorite part of this job.  The claimant’s deposition is the opportunity when we get to meet the claimant in person and find out in their words how they got hurt, what they have been doing since the injury, and how their pain is currently.   Over 25 years of practice, I have met many characters, as you can imagine. And there have been many faux pas – both by me and by the claimant.  For this article, I have compiled some of the more unusual things that have happened at my depositions and at those of some of my colleagues. Enjoy!

I’ll never forget one of my very first depositions.  I asked the injured worker whether he’d ever had any surgeries previously.  He responded, “yes, a rhinoplasty”.  I asked the natural follow-up question: “What was the name of the doctor that performed that?” To which the claimant glanced at my nose, smiled and said, “Oh, yea, he did a great job, you should definitely look him up!”

Shortly thereafter, I took the deposition of a gentleman in his mid-50’s who had been injured at work.  He testified that he had never been married, and I asked whether he had any children.  His response was, “yes.”  I then asked, “how many children do you have?”  He responded, “Whoa, oh boy….I didn’t know you was gonna ask that…well, let me think,” at which point he closed his eyes and lowered his head a bit and lifted up his fists on both hands, started thinking deeply and whispering under his breath as he counted how many children he had, while raising a finger for every child he could recall.  He got to ten and then he opened his eyes, looked up and said, “12! But don’t even think about asking me to try and give you all of their names!”

I have devised categories for some of the unusual things that happen in depositions. I will call this first category “bone chilling”.  These are the depositions that leave you a little nervous or unsettled because of the responses given. For instance, around 20 years ago I was at a very old court reporter’s office in Live Oak, Florida.  The court reporter’s office was in a tiny, rickety house and the court reporter was a gentleman who had been reporting for almost 40 years.  He still took depositions by short-hand, so everyone sat at a small round table together while he scribbled page after page during the taking of the deposition.  To accommodate this, we were all very close together at the table while taking the deposition.  I asked the 58 year old claimant who had been injured while working as a logger whether or not he had ever been convicted of any felonies.  His response? “Murder.”

Here is another deposition response that might fall under the bone-chilling category:

Q: What is your email address?

A: I’ll just spell it for you: a-l-i-v-e-v-a-m-p-i-r-e.com

(It’s a good thing I took that claimant’s deposition in the daylight!)

 

The next category of deponents are those that take each question literally.  These depositions can take a long time, as we need to really pull information out of the claimant.  For instance,

 

Q: Do you do any yardwork?

A: Pick up sticks.

Q: Any problems picking up sticks?

A: Yes.

Q: What problems do you have?

A: Problems picking up sticks.

 

Q: What have you done a day when you’ve felt great?

A: I’ve gone to Anytime Fitness thinking I could workout and find out that I shouldn’t have.

Q: When did you do that?

A: November.

Q: Okay. Do you belong to Anytime Fitness?

A: No, I do not belong.

Q: Okay. How were you able to go there?

A: Drive my van.

 

Q: Okay, so those caused headaches?

A: I think I would call it more of a head pain.

 

Here is another literal exchange, provided to me by a colleague:

 

Q: Please state your name for the record.

A:  Ann Smith

Q:  Is that Ann with an E?

A:  No, with an A.

 

My friend Mary was involved in a case involving an alleged violation of the ADA.  During the deposition of the employee, the attorney asked the witness what she considered to be a reasonable accommodation.  She responded, “Motel 6.”

Believe it or not, sometimes the attorneys get tripped up when taking a deposition, or we may misspeak.  For instance, an attorney friend represented a claimant who was having her updated deposition taken.  A senior partner had taken the deposition two years prior, and he sent a young, inexperienced associate to take the update.  The claimant’s attorney saw the young associate remove a large deposition questionnaire from her file as she began to prepare for the deposition.  So as to not waste time, he said to her “you know this is an updated deposition, so you can find out what has changed in the last two years, but we aren’t going back to the beginning of time to ask everything that was covered previously.”  Obviously flustered, the new attorney glanced at her outline and the notes in the file from the first deposition and proceeded to ask “So, were you still born on July 7, 1968?”

Another friend once asked a guy, whose name was John Smith, Jr. what his father’s name was, more than once.

Dr. Howard Weiss was serving as an expert in a medical malpractice case, where the claimant died.  Dr. Weiss was asked whether or not the patient had a good result.  The doctor replied “dying is not a good result” at which point his deposition was abruptly halted.

 On the other side of the table sit the claimant’s attorneys, who can only hope that nothing goes awry during the deposition.  Some claimant’s attorneys go to great lengths to prepare their claimant for their deposition, to ensure that it goes smoothly, but you never know what might happen.  For instance, my friend Ken was preparing his client for a deposition and the claimant started speaking in tongues!  Needless to say, Ken was concerned about how that deposition was going to go. Another claimant’s attorney was representing a claimant whose claim was being denied because the claimant refused a drug test.  My friend wanted to make sure that his client was forthright, so he encouraged him to tell the truth at the deposition.  The claimant did heed that advice, but he failed to listen to his attorney’s recommendation that he answer with a “yes” or “no”, and that he not offer up any unsolicited answers.  The claimant was asked “have you ever done drugs?”  His response was, “oh yeah, you name it, cocaine, PCP, marijuana, I’ve done them all!”  His attorney’s head hit the table.

 Other times, the claimant may not understand the importance of speaking loudly and clearly so their answers don’t get mis-transcribed.  I know it will be a long deposition when it starts like this:

 

Q: Remember to say yes and no instead of uh-huh and huh-uh.

A: (nodding head)

 

Some important things that happen at depositions occur off the record. For instance, I deposed a nurse who had injured her back when her chair broke at work.  I thought I had secured a pretty thorough medical history from her when I took her deposition, asking her about prior surgeries, who her family doctor was, whether she had been hurt at work before or injured in a MVA, etc.  After the deposition had concluded, and we were parting ways, the claimant mentioned, “you asked me about motor vehicle accidents and I wasn’t really sure if this counted or not, so I didn’t say anything, but I did get hit by a train one time!” 

 We also have the category of claimants who don’t really understand what their medical condition is, but they try to explain it. For instance, I’ve had many claimants testify that they “sprung” their back, or that they have a “rotor cup” tear in their shoulder.  And sometimes, they just misspeak.  Just last week, for instance, while asking a claimant to tell me his understanding of what the MRI of his neck showed, the claimant testified “I have a herniated dick”. 

I like to think of this category as, “I am not a doctor, but I play one on TV.”  Here are some depositions that fall into that category. From my friend Cindy, who is a court reporter: She recently took the deposition of a claimant whose voice was extremely raspy and who was having difficulty providing testimony because she was sick and coughing.  The claimant kept apologizing for her “barnacles,” which the reporter believed was probably bronchitis.

Some medical conditions are probably even hard for doctors to pronounce, but you have to give this claimant kudos for trying:

Q: Have you ever had surgery?

A: Yes.

Q: What for?

A: I had a UPPP done: a Uvalveaplatypurhinogology or something. They take the tissue out of the back of your throat; uvula, to help breathing problems for sleep apnea.  It didn’t help. (the correct term is uvulopalatopharyngoplasty)

 

There also is the category of the claimant who just seems to be talking in circles.  In deference to my friend Ken for helping by contributing to this article, I will call this category the “talking in tongues” category.  For instance:

 

Q: What injury did you have at work that you had to go to the emergency room for?

A: I had a slice, a cut here on my hand. 

Q: And, you’re indicating your left ring finger?

A: Was it left or right? I don’t—

Q: That’s your left. The one you’re pointing to is your left hand. Show me which got cut.

A: I’m not sure, honestly.

Q: It looks like there’s a slice on the one you were pointing to at first.

A: Yea. This one?

Q: The very tip of it, it looks like it maybe had a cut there, no?

A: I’m not sure which hand it was, but it was one of the fingers.

Q: Okay. And you don’t remember though which hand it was?

A: I’m not sure, but it was my right hand.

 

Q: So what injuries did you have?

A: From the accident?

Q: Yes.

A: Well, this right here. You see that?

Q: You’re indicating your right wrist?

A: This right here.

Q: I’m not really sure what you are showing me. There’s a scar?

A: Yea.

Claimant’s counsel: Verbalize what’s going on with the wrist. What’s your problem?

A: The bone just keeps jumping, flexing back and forth, you know.

 

Q: Do you wear eyeglasses?

A: Most of the time outside, yes ma’am.

Q: Outside?

A: Yes, ma’ am.

Q: Who prescribed these for you?

A: Ain’t nobody prescribed them. I just had my eyes examined and it helps me see.

Q: Were you having some problems, is that why you had the exam done?

A: I can see pretty good up close but up front, I can’t see.

(maybe he has eyes in the back of his head!)

 

Many times the claimants will have watched too many law shows on TV, and they will assert themselves in the deposition based upon what they have learned.  I recently had a claimant who refused to be sworn in for his deposition, although he couldn’t verbalize why he wasn’t willing to swear. He just knew it was his right.  Other times, claimants will assert their Fifth Amendment right against self incrimination and refuse to answer a question, even over the instruction to the contrary by their counsel. Or, they just use “legalese” during the deposition. Depending upon the situation, I either consider this category “Law 101” or “conscientious objectors”:

 

Q: Tell me what date it was on which you were injured?

A: Which accident?

Q: Did you have more than one work injury?

A: Oh, you talking about on the job.

Q: Yes.

A: Oh, okay. I want to make sure we get it clear.  Rephrase the question again.

 

The claimant had been arrested for fleeing and eluding, so I wanted to ask him some questions about that:

Q: When they were pulling you over for the tail light, did you speed up and drive away?

A: No.

Q: Oh.

A: I just didn’t pay them any attention.

Q: Okay. Why not?

A: Because as far as I know, it’s my right to avoid any situation that’s not to my benefit.

 

Morgan Indek from our Orlando office deposed a security guard who was injured while chasing an “auspicious” person through a parking garage. Of course, Morgan just had to ask how “auspicious” the person was, to which the claimant replied “very auspicious!”

The next category is one I call “TMI.” And you know what that means…Too Much Information….Here is an example of a first responder who alleged that his heart disease was compensable.  He had received treatment and had paid for much of it out of pocket. One of the things he was treating for, which he was alleging was related to his heart disease, was erectile dysfunction. 

 

Q: Your insurance doesn’t pay for your Levitra? So you are paying out of pocket for that?

A: Yes.

Q: How often do you have that filled?

A: Well, let’s see.  The last one was for 30 pills.  If you want to know how many times I’ve had sex in the last 30 pill times, I don’t think—I don’t think I want to tell you that.

 

Another claimant was asked, “what do you do on a typical day?  Walk me through your routine”.  To which he thought and then mumbled to himself, but loud enough for the court reporter to put on the record, “wake up, take a dump”…and he continued to mumble to himself and next said “get out of bed!”

The final category for this article is “he said what?”  Sometimes we receive answers to our questions that are so unexpected, we don’t know whether to laugh, pursue further questioning, or just sweep it under the rug and move on. For instance,

 

Q: You said you went to college?

A: I did.

Q: Okay, where did you go?

A: Santa Fe College

Q: For how long?

A: 25 years

 

Q: Have you done anything like tennis or golf since I took your deposition 2 years ago?

A: No, not that I remember. But I did get one of those fly swatters that you put batteries in, and you electrocute them. It looks like a tennis racket.

 

Q: Do you own any pets?

A: No, the crackheads.  I’ve got these neighbors, they poisoned one and beat the other one to death.

 

When questioning a claimant about a MVA when his vehicle hit a deer:

Q: After you hit the deer, did it run off?

A: Nope, it flew like a Frisbee.

 

Q: What happened to your old truck?

A: Well, it just wore out I guess.

Q: When you say it wore out, what do you mean?

A: Like, I bump into things with them.  Eventually it gets to where the door won’t open or shut.

 

Q: Do you know why your wife doesn’t let you mow?

A: I would imagine because she wouldn’t have no flowers left.

 

Q: Do you need any assistance with bathing or showering?

A: I shower myself. Sometimes in the morning and sometimes in the evening.  It just depends.

Q: What does it depend on?

A: If I get outside and them dogs knock me down or something

 

Q: Does your wife have to prepare all of your meals for you, then?

A:  Yep, the little squirrel goes around and fixes me something every now and then.

 

Q: Do other family members live around you?

A: No ma’am. I ran them all off.

 

Q: Have you ever been married?

A: Yes, unfortunately, once.

 

Q: Did you finish 10th grade?

A: No.

Q: Why did you leave school?

A: Because they didn’t have anything that I felt interested in.

 

Q: Do you believe in psychiatry?

A: What is it, a religion, philosophy?

Q: No.

A: A belief?

 

Q: Do you go by any names other than Stanley?

A: Yes.

Q: What other names?

A: Do you mean in like society, or just online?

 

This is just a sampling of the random and unusual things that happen on a day at the court reporter’s office.  There are many, many more – too many to mention here.  Thank you to all of the contributors who provided me with their deposition stories. I wasn’t able to use them all, but I appreciate the time and contribution. And, to wrap things up, I would like to use an example of recent testimony by a claimant. This was submitted to me by Marcus Rodriguez, in our firm’s Orlando office. In his case, the claimant was asked what he liked to do in his spare time, and the claimant testified, “Sex, Drugs, and Rock and Roll!”