One of the most common questions lawyers ask at depositions is some form of the following: “Are you under the influence of alcohol or any other substance that would prevent you from testifying truthfully and accurately?”  Law schools teach us to ask this question to prevent witnesses from claiming later that their memory had been obscured by alcohol or drugs.  In many settings though, this question is not asked of witnesses.  What follows is a short (and true) story about what happened in one such instance.

 

An employee and his lawyer showed up to a workers’ compensation settlement hearing before a hearing officer.  The employee was to accept $50,000 from the employer to resolve his claim.  The hearing officer went through his standard set of questions, which all focused on making sure that the employee was aware that he was giving up all future claims against the employer by settling.  The employee answered all of the questions appropriately and the hearing officer approved the settlement.

 

The next day, the employee walked into a different lawyer’s office with a curious tale.  He claimed that he had been drunk at the prior day’s hearing, and would never had agreed to such a low settlement had he been sober.  He was even willing to produce a receipt from a liquor store where he had purchased a fifth of vodka a few hours before the hearing.  The new lawyer, curious to test the system, took the case and moved to annul the settlement.  It took months for another hearing officer to hear the case for annulling the settlement.  Fortunately for the employer, the hearing officer was not impressed by the employee’s argument and refused to annul, letting the settlement stand.

 

Though this saga must have been a hassle (and an unexpected expense) to the employer as well as the Workers’ Compensation Board, to this day many hearing officers do not ask employees about their sobriety at settlement hearings.  Should they?  And if they don’t, should employer counsel take steps to raise the issue of a claimant’s competency to testify at a settlement hearing?  We would appreciate your thoughts.