Today’s post is the third in a series of posts by friend of the Academy, Crystal M. Uebelher, J.D., CPCU. Crystal is an insurance professional and a lawyer. Crystal loves teaching non-lawyers about the law and lawyers about insurance.
Last week we discussed why you have the unfortunate distinction of being a witness in litigation against your company. Now that you know why you are of interest to the opposing lawyer; you can prepare for the dreaded event. You might be thinking that if you are just sharing your personal recollection or knowledge little preparation is needed. Unfortunately, you are wrong. To be successful, you must know the facts related to your role in the case better than the opposing lawyer and have a plan for answering the questions likely to be asked. Here are the next questions to consider on your journey to deposition success.
Question 3: What should I review?
On a theoretical level, litigation is about finding the truth. On a practical level, the rules of evidence restrict the flow of information between the parties. In every case, there are documents that seem related to the litigation, but are not disclosed due to the rules of evidence. Before you dive in and begin reviewing every internal document about the plaintiff or claim, ask your lawyer what you should review. There may be a strategy behind which documents your lawyer wants you to review in advance of your deposition. Follow your lawyer’s instructions and avoid the temptation to look at other documents.
You may also see documents listed on your Notice of Deposition. Consider this the opposing lawyer’s wish list. Some of the documents requested may not even exist. Again, before looking for those documents, ask your lawyer whether you should track them down. You may find that your lawyer has a valid objection to producing the documents. Be aware that some courts require production of everything you review in preparation for your deposition. If you review a document your lawyer did not intend to produce, you may have undermined the litigation strategy.
Question 4: What are the “bad facts”?
In many cases, there are facts that are adverse to your company’s defense. For example, as a claim representative perhaps you made an error in judgment and put an opinionated comment in your notes which suggests you were looking to deny the claim. This may be very far from the truth, but the existence of the comment is a “bad fact”. It is important to understand what your lawyer sees as the bad facts in the case. The opposing lawyer will certainly zone-in on those bad facts with the goal of building them into something bigger than they really are. You need to develop a plan with your lawyer for answering questions about those bad facts.
The bad facts may not even be part of your personal involvement in the case. It could be something a colleague said or did. It is still important to know these issues. A skilled lawyer will ask you questions aimed at creating a disconnect between your testimony and the actions of your colleague. In the example above, you may be asked whether it is appropriate to put your personal opinions in claim notes. If you say an unequivocal “no” you have inadvertently thrown your colleague under the proverbial bus and potentially damaged the case for your company. By working with your lawyer in advance, you can anticipate this question and discuss an appropriate response.
Question 5: Who are my allies?
Frequently, litigation involves more than one plaintiff and one defendant. In a perfect world the defendants work together to defeat the plaintiff’s claims. Unfortunately, that is not always possible. You should know if the other defendants are allies or enemies. The opposing lawyer may ask you questions aimed at obtaining testimony from you to damage the other defendant. If the other defendant is your ally, you need to prepare with your lawyer for these types of questions.
As you can see, being a fact witness seems simple on its surface but the opposing lawyer may be setting many traps. If you show up at your deposition without thoughtful preparation you miss your opportunity to support the company’s defense and perhaps damage it instead. In our next installment of this blog series, we will switch focus to discuss preparation for serving as the corporate representative rather than a fact witness.
Crystal Uebelher, J.D., CPCU is an insurance lawyer who is passionate about elevating the expertise of lawyers and insurance professionals on the ever-changing issues in our industry. Crystal is the owner of Clarity Education and Consulting, LLC, where she creates meaningful educational experiences for insurance agents, lawyers and claims professionals. Crystal also works in the Claims Department at a mutual insurance carrier.
Crystal earner her juris doctorate in 2007 from the University of Wisconsin Law School (magna cum laude, Order of the Coif). She earned her Chartered Property Casualty Underwriter designation in 2017.
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