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Friday, February 12, 2010

You should not be MOCKed

MOCK - It is the cornerstone of testimony. It is actually a mnemonic for Memory Oath Communication and Knowledge.

Everyone can give testimony unless they are excluded by MOCK. Cal Evid 700

It is the four things a witness must have in order to give testimony in a court of law.

Memory - A witness must have an independent recollection of an event. Essentially a person must be able to describe a memory from their own mind in order to give testimony on that memory. Cal Evid 702

Oath - A witness must be able to give an oath to tell the truth and understand the oath they are giving. A child or an incompetent would be unable to give an oath because they would lack the capacity to understand what the oath meant. Cal Evid 701(a)(2)

Communication - A witness must be able to communicate their testimony in such a way as to be understood. Interpretation is allowed and the communication need not be verbal. Cal Evid 701(a)(1)

Knowledge - The individual must have personal knowledge of the subject upon which they will testify otherwise it may be hearsay. Presenting hearsay evidence is a whole can of worms which has scared law students for decades. Cal Evid 702(a); Cal Evid 801, et. seq.

How Does This Apply to You?

If you are ever asked to give testimony in a courtroom or deposition setting, it is important that you are competent to give testimony. It is also important to have a lawyer present to protect your interests. During the course of testimony, if you are ever unable or incompetent to give testimony you should immediately inform your attorney so the proceeding can be stopped.

Having a lawyer present during testimony can protect you from being "tricked" by another attorney. An attorney can object to questions on your behalf. Finally, if you ever become unable to give testimony, your lawyer can conclude the proceeding on your behalf and make certain your legal rights are protected.

Often times, people are subpoenaed to testify in a case in which they are not involved. The person may give testimony without a lawyer present but it is done so at their peril. Remember testimony under oath which is recorded can come back to bite you. Famous examples include Barry Bonds, Bill Clinton and Lil Kim are all people who gave testimony under oath which later caused them serious problem.

Save yourself the trouble, at least speak with an attorney before giving testimony.

Monday, February 1, 2010

How is work working out? Have you been injured while working out or at a company sporting event?

If you recall my prior post about the subjective/objective test for injuries outside of work, you may be entitled to compensation.

The same test applies to an injury while at a gym, company sporting event, or even a vacation!

All of this is codified in Labor Code Section 3600a(9). The text of a(9) is confusing but some real world examples can explain the broad scope of the labor code in providing benefits to employees.

Consider the following three examples:

1. An employee was working out in his free time at his local gym. Employee worked as a personal trainer for a major chain of personal training gyms. While working out in his free time, employee injured his knee. The court found the knee injury to be compensable. The employee had a subjective belief that he was required to maintain his physical fitness. The judge found it was objectively reasonable for the employee to believe he had to be physically fit. Therefore the employees claim was valid.

There is an indication that if the employee had been engaging in an outrageous workout regime or had been getting paid by a third party at the time of the injury then it would not be compensable.

2. Employee works as a law clerk at a law firm. Employee is injured at a company softball game which occurred after hours. Employee's injury is deemed compensable

The basis for this award to the employee is because the employee had a subjective belief that they were required to play softball. The judge found the belief reasonable based on the employers use of work areas to advertise the softball game, the number of supervisors and managers at the game, the indication that employees were expected to attend.
-Ezzy v. WCAB (1983) 146 Cal.App.3d 252, 48 CCC 611

3. A member of a police SERT team is on a training run while off duty when he slips, falls and breaks his ankle. It is held to be a compensable claim.

The police officer testified he was of the subjective belief that he had to work out due to an upcoming physical fitness test. The judge found this to be objectively reasonable as a member of the police SWAT team the employee was expected to maintain a high level of fitness for work and he could face discipline or loss of job if he was found not physically fit. Therefore the injury was found compensable. Wilson v. Workers' Comp. Appeals Bd. (1987) 196 Cal.App.3d 902