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Worker's Compensation Advocacy: Playing Fair in the Same Sandbox

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I just completed another semester teaching the worker's compensation course at Marquette University. Part of my responsibility includes instructing students on the ethical practice of worker's compensation law. I also recently read an article in the American Bar Association Journal in which a lawyer was chastised by the Judge for inappropriate behavior in a class action lawsuit.

The lawyer held depositions in a Dunkin Donuts, wore a T-shirt and shorts to the deposition, drew penis cartoons during the deposition, and played Angry Birds on his computer throughout. He also disrespected the opposing counsel, indicating in the presence of the opposing party that the counsel was inadequately trained to handle the case.

While worker's compensation claims can be bitterly fought, worker's compensation attorneys on both sides, in general, remain highly professional and relatively cordial.

While worker's compensation claims can be bitterly fought, worker's compensation attorneys on both sides, in general, remain highly professional and relatively cordial. Part of the explanation is the absence of actual "discovery" in worker's compensation - no depositions, requests for production of documents, etc. that lead to the kind of results discussed above. Injured workers waive physician-patient privilege and worker's compensation carriers can obtain any and all relevant medical records to defend the claim. Experts' reports are required to be exchanged by Statute, and depositions are held only in rare circumstances (when parties are unavailable at a hearing). Although this "trial by surprise" can sometimes produce surprising results depending on the testimony, the absence of substantial pre-hearing discovery also means, in general, the absence of gamesmanship present in some other more contentious areas of the law.

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