Guest Post: The Insurance Professional’s Guide to Giving Depositions Part 4: Preparing to Testify as a Corporate Representative

Today’s post is the fourth 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.

If you thought preparing to be a fact witness was daunting, you are in for a treat as we delve into the corporate representative deposition. Remember, the corporate representative’s role is to speak for the company. This means the corporate representative’s answers serve as the company’s answers. Despite the complicated nuances of these types of depositions, it can actually benefit a company. It avoids the need for several employees to sit for a deposition and allows the opposing lawyer only one chance to get the “company” answer to the questions. It also reduces the potential for contradictory testimony, which could undermine the defense of the case. In the end, the key to a successful corporate representative deposition is preparation.

Choosing the Corporate Representative:

The first critical question is who to designate as the corporate representative. Some companies have employees who are the default corporate representative due to the volume of litigation and the desire for consistent and reliable testimony. This is a good strategy if it fits your company’s situation. Otherwise, you should start by reviewing the Notice of Deposition. This document includes topics and documents that the opposing lawyer wants to discuss in the deposition. Remember to communicate with your lawyer during your review, as there may be topics or documents in the Notice that are subject to evidentiary objections.

Once you know precisely which topics and documents will be discussed in the deposition, identify an employee who has subject matter knowledge on most of the topics. Often this is not the person who knows the most about the case. This decision is driven more by the types of information to be discussed rather than the facts of the case. This might be someone in management who can speak to general company process and procedure. For example, if the litigation involves a terminated employee the best corporate representative may be a human resources leader rather than someone in the former employee’s department.

Gathering Information to Testify:

If you are designated as a corporate representative, plan to dedicate even more time to preparation than if you were a fact witness. Your two best assets in your preparation are your lawyer and the Notice of Deposition. Start with a detailed conversation with your lawyer about the specific information or documents referenced in the Notice of Deposition. Many of the documents will already have been exchanged by the parties in written discovery. Discuss whether there are new documents that you need to review or compile in advance of the deposition. Also identify topics that you need to further educate yourself on. As you talk with your lawyer, take detailed notes and think of the people or places in the company where you can obtain the information you need to be fully prepared.

For example, if you are a claims supervisor and the opposing lawyer wants to discuss oversight of claim denials you likely know this well enough to testify without discussing with others. Yet, if the topic includes all auditing of claim denials, that may also involve your compliance and audit department. You will need to contact that department to learn whether they have an audit process for denied claims.

Continue this process for each area on the Notice of Deposition. Ask yourself whether you already have the knowledge to talk about the topic or document. If you find yourself consulting others in the company about a topic or document, note each person you talked to and the topic you discussed. During your deposition you’ll likely be asked who you relied upon to prepare to testify. If the deposition has many topics and documents it can be challenging to remember everyone off the top of your head.

Finally, the most important thing to remember is that as the corporate representative you are not speaking as yourself, you are speaking as the entire company. The answers you give legally bind the entire organization. This is a big responsibility, but if you take it seriously and prepare thoroughly you have an opportunity to truly help the company’s position in the litigation.

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.