Yes! Yes! Yes!
It is common practice for defense counsel to take the deposition of the employee (or former employee) who is represented by an applicant attorney. We call this a litigated claim file.
Except in very rare circumstances, I have always recommended that an employer representative be present at the deposition. The applicant attorney will typically only agree to one employer representative in the room, so picking the right one is critical.
A deposition is part of the discovery process. The purpose is to “discover” information that might include work history, medical history, past injuries, activity levels, hobbies, etc.
Depositions are taken under oath and in the presence of a court reporter who will capture all of the questions and answers. With an employer representative present, the answers are less likely to deviate from the truth. And, if they do, the employer representative is there to alert defense counsel.
Remember, the only one being deposed is the employee or former employee. Not the employer.
Here are some things to do when a claim is being litigated:
- Alert the claim handler to the fact that an employer representative will be attending any deposition of the employee or former employee.
- Request that a copy of all deposition notices is sent to you, the employer.
- Decide on who will be attending as the employer representative.
- Speak with defense counsel prior to the deposition date to discuss logistics and to answer any questions that defense counsel may have while drafting the deposition questions.
It will likely be a surprise to the employee or former employee that someone from the employer is attending the deposition. Often times such a surprise may lead to a resolution of the claim at the time of the deposition.
WARNING: Sometimes depositions get canceled at the last minute by the applicant attorney and are rescheduled for a later date.
The Henderson Group is here to assist you with claims management and to answer questions such as this one.
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