By: Betsy Campo, Partner, Gainesville

I sprung my back. 

Woke up this mornin’ and I was all stoved up.

Didn’t do no shade tree mechanicin’ over the weekend.

This pain is wors’n when I tore my rotor cup that one time. 

The doctor gimme some inflammatories.

I might could go back there if workmans comp will let me.

I’m fixin’ to call my bossman ‘bout it now.

No, those aren’t the words to a country song–just responses from various depositions of workers’ compensation claimants.  As those of us engaged in the industry know, workers’ compensation has a language all its own.  Not only are there terms like TTD, TPD, PTD, etc…but the individual claimants have their own way of describing how they were hurt and what has happened since then.  My favorite part of being a workers’ compensation defense attorney is to take the claimants’ depositions.  Not only does it help to put a face to a name when I meet the claimant at the deposition, but it brings the claim to life, and gives it a dynamic that doesn’t otherwise exist when I merely look at the paper file.  Each claimant’s description of the workplace and accident provides a visual, and the tone and presentation they use in responding to deposition questions help me gauge the veracity and reasonableness of their allegations.

All of us involved in workers’ compensation can tell a funny story about something a claimant said or did that was memorable.  Court reporters also hear more than their fair share of unusual or comical details.  Many times I have said to the reporter, or thought to myself “you can’t make this stuff up.” Not only are the anecdotes from deposition good for a chuckle, they are also a raw, stripped down version of a claimant’s reality.  They are a splice of life, and the deposition gives us a peek into the claimant’s everyday reality, both before and after his or her alleged work accident.

One lesson that I learned while pursuing my Communications degree was the art of verbal mirroring.  Verbal mirroring is a way to establish rapport with someone by adopting that person’s inflections, tone, mannerisms or speaking style.  In claimant’s depositions in North Central Florida, that oftentimes involves what I refer to as “southern-speak.”  In my early years of practice in this area, I often had a difficult time understanding some of what the claimants said at deposition.  Some phrases were foreign to my Iowa-born and raised ears.  Over the past 20+ years, though, I have learned to speak and understand “southern,” so taking claimants’ depositions is much, much easier.  I don’t think I will ever personally refer to the grocery store shopping cart as a “buggy,” but I will call it that when taking a deposition, if that is what the claimant calls it.

No matter the status of the claimant’s workers’ compensation case – whether it be denied completely for misrepresentation, or whether I am defending against a PTD claim – I approach all claimants the same at deposition: with courtesy and respect.  The deposition is my one, and possibly only, opportunity to hear the claimant’s description of what allegedly happened at work that brought us to the point of the deposition.  It may also be the claimant’s only opportunity to be given the spotlight to speak about the incident and its sequelae.  The words the claimant uses to describe the incident, and his or her tone, inflection and mannerisms all give depth to my understanding of the case. 

In an effective deposition, employing verbal mirroring may help the claimant to respond freely to open-ended questions.  Information will often be offered by the claimant that I did not anticipate.  I listen and follow up with additional open-ended questions in an effort to secure more potentially helpful details.  I have always loved treasure hunts, and each deposition is just like one; except, instead of hidden treasure, I am trying to find out information that could be key to the defense in the case.

If you are an adjuster and you get an opportunity to take a recorded statement, I strongly recommend that verbal mirroring be practiced and employed.  Do not rely solely on your standard form questionnaire when getting the information.  Keep it handy, for reference, but listen closely to the responses and, mirroring words used by the claimant in the answers, ask follow-up questions.  Let the conversation flow somewhat freely and let the claimant open up. Use your form to steer the conversation back on topic if you stray too far.  The information you gather will be useful and meaningful, and it will help provide you with a clearer understanding of the case.  If you listen closely, it very well may help you measure the quality or veracity of the claimant’s version of events so you can decide how to respond to the claim.

If you are taking a statement in some parts of Florida, be mindful that you may hear some words or phrases that are new to you.  When that happens, the best thing to do is not to say “pardon.” or “excuse me,” but you need to say “do what now?” and the claimant will repeat the answer.  If you mirror the language of the claimant, you will get more and better information than if you just ask pre-drafted questions.  So, the next time you find yourself taking a claimant’s deposition or taking a recorded statement, keep these guidelines in mind and get out there and “talk the talk.”