I have a notice of a deposition for a work related injury however my injury really pertains to serious and willful misconduct by my employer who retained the employee that caused my injury after I filed a formal complaint with DFEH. The attorney I have for the work related injury says they are only there for the work related injury and not the serious and willful misconduct I need to postpone to get a 2nd attorney Is that a legitimate reason to postpone the deposition
Yes, you can request that the deposition be postponed. However, if the deposition was noticed in your underlying work comp claim and you have an attorney for that claim, your attorney would likely object to any questions regarding the s&w and would not allow you to answer those questions. You need to discuss this with your attorney as delaying the deposition in that claim could have some ramifications.
I agree with Ms. Siles. In addition, it is highly unlikely you will be able to get an attorney just for serious and willful misconduct. Also, make sure your petition for serous and willful misconduct is actually filed with the court - you have only 1 year to file this petition - talking about the misconduct is NOT enough.
Discuss with your attorney about handling your serious and willful misconduct case.
Good luck.
Without knowing the facts of your case, it is hard to say if you have a valid S&W claim. There is a high standard misconduct to file a S&W claim against your employer. Talk to another attorney or two before your deposition and see if they feel you have a valid basis to file a Petition for Serious and Willful Misconduct and if so ask that attorney to handle all matters before the WCAB i.e. sub in on you case. If you have a valid complaint with the DFHE you may also need an employment attorney.
You can certainly request your deposition be postponed as long as there is no Order to Compel your deposition by a Judge. You may also want to consult other attorneys that can and will handle your underlying work injuries and your S&W issues. You will likely have a better chance of obtaining representation if you can find a new attorney that will handle both. When you call to schedule a consultation be sure to ask the attorney's office if they also handle S&W cases. Good luck.
Yes you can ask to postpone it but you have to do so within a reasonable timeframe. If you do it the day of deposition they will get a motion to compel your attendance. Please talk with your attorney first. Also Serious and Willful allegations are very very hard to prove. Make sure you have a legitimate basis for filing one.
