WCDefenseCA

Alrighty dear readers, it’s Wednesday!

And, what, you might ask, is a perfect topic for a blog post on Wednesday?  Well, if it’s coming from your humble blogger, it might just be the alleged misdoings of a Florida workers’ compensation attorney!

I know, I know, what do you, my beloved readers, who have managed to exhaust all your discipline and will power to force yourself to read this California Workers’ Compensation Defense Blog care for what happens in a state where Gators are just waiting for you to give them a reason?

One’s odds of being murdered by a gator are low…

But never zero!

Well, while we’re all enjoying working from home, and the depositions are all being done via ZOOM, one of the concerns that practitioners rightly have with remote depositions is monitoring the deponent’s attorney “coaching” or directing the witness’s testimony.

So while your defense attorney is sitting there in his pajamas, sipping a totally virgin coffee while asking questions of the applicant, those glances off screen might not be the applicant concentrating really hard to make sure the answers are honest and correct.  Instead, the deponent might be reading text messages with answers being fed by the applicant attorney!

Now, while you might be saying to yourself that the humble blogger is being paranoid and that would never happen, the truth is that the Florida Supreme Court referee certainly thinks it did.

The Florida state bar filed a complaint against a defense attorney, who fed answers via text message to an adjuster being deposed in a workers’ compensation case.  In all the fun, the defense attorney accidentally sent one of these answers to the deposing applicant attorney!  This resulted in an investigation and the Florida Bar ultimately concluded the defense attorney was engaged in witness coaching.

In this case, this was discovered only because the defense attorney inadvertently sent the texts to opposing counsel, instead intending to send them to his client.

Text messaging is not the only way to engage in instant communications.  Google chat, Facebook Messenger, perhaps even some sort of magically teleporting homing pigeon, are all methods that would avoid detection but can continue to allow “coaching” between a deponent and the deponent’s attorney.

Nor is this limited to a deponent – an employee’s witness can likewise be coached during a video deposition.  Absent a slip-up like the one encountered here, there’s not much that can be done about it except the watchful vigilance of the deposing attorney.  The deposing attorney needs to observe and document, on the record, the demeanor of the applicant: “let the record reflect that before answering, the deponent was looking off screen” or “let the record reflect that applicant’s counsel appears to be operating his cell phone off screen as if to send a message” or “let the record reflect that a vibration noise was heard from the deponent’s side of the screen and she reviewed something before answering.” 

If this becomes a habit or routine thing during the deposition, perhaps it would be more appropriate to have the deposition videorecorded or taken before a special master.

Remember, dear readers, they promised us that by 2020 we’d have flying cars, robotic butlers, and lunar vacations.  But here we are, homeschooling our kids like the frontier days, and counting how many seconds allegedly injured workers looked off screen before answering basic questions, while doing our best to avoid arguments about whether the world is flat.  Good luck, dear readers, and watch out for the gators!