Guest Post: The Insurance Professional’s Guide to Giving Depositions Part 5: Practicing for Your Deposition

Today’s post is the fifth 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.

Now that you have reviewed the relevant documents and spoken with your lawyer to understand what is expected of you, it is time to practice your testimony. There is really no substitute for the real-life anxiety you will likely feel when you sit down at the table next to the court reporter and opposing lawyer. Nonetheless, there are things you can do to help relieve some of that anxiety.

Preparation Sessions

Plan to spend at least two (and up to eight) hours with your lawyer practicing for the deposition. Ideally this preparation session takes place about a week before your deposition. It is best done either in person or via video. Do not simply meet with your lawyer an hour before your deposition starts. The day-of meeting should be in addition to your prior prep session. At your prep session, your lawyer should walk you through a simulated question and answer process with the types of questions you can expect in the deposition.

Listen to the Question; Pause Before Answering

The best lawyers make the deposition feel like a conversation. In conversations, each party informally shares information and exchanges ideas. A deposition is not a conversation. This tactic lulls you into answering casually, not thoughtfully, and may lead you to share more information than you should. Another tactic is to ask questions in an aggressive and threatening manner. This puts you on the defensive, and again, distracts you from providing well-reasoned answers.

In either approach, the remedy is to slow down. Take control of the deposition by setting your own pace. This frustrates the opposing lawyer who wants to exert control. It also gives you time to think through your answers. When you pause, ask yourself if you understand the question. If you do not, ask the opposing lawyer to rephrase it. Then, formulate your answer in your head before speaking. If the deposition is not being video recorded you can pause for as long as you need, as this gap in time is not reflected in the transcript. If you are being video recorded, be sure you are not unreasonably delaying the deposition by thinking through your answers. Doing so could make you appear evasive or undermine your credibility.

Pausing also allows your lawyer time to object to questions that violate a rule of evidence. Listen carefully to the objections. Generally, the lawyer is limited to briefly stating the legal basis for the objection. Your lawyer is not supposed to explain why the question violated the rules of evidence. Nonetheless, the legal basis for the objection can give you valuable clues about traps in the questions. For example, if the objection is that the question “misstates prior testimony” this means your lawyer thinks the opposing lawyer has unfairly summarized something you said earlier in the deposition. Think through whether the question misstates your prior testimony and answer accordingly.

Answer Only the Question that is Asked

Here is a classic example: Do you know what time it is?

This is a yes or no question. You either know the time or you do not. The answer is not the current time. This is one of the most difficult parts of the deposition. You have prepared weeks by gathering and reviewing all sorts of information. Your instinct, especially if you are Midwestern, is to be helpful and give detailed answers covering all the information you anticipate the opposing lawyer wants. Fight those instincts. This is an adversarial process and you only provide the opposing lawyer with the information requested. Never withhold information that answers the question, but avoid volunteering additional information. It is the opposing lawyer’s job to ask the right questions, including appropriate follow-up questions. If the lawyer is not clever enough to ask the right questions, do not help.

Be Specific

You know your business better than the opposing lawyer. This lack of knowledge leads to the lawyer asking vague and broad questions. Be wary of questions that do not provide the specifics needed to properly answer. For example, if an opposing lawyer asked your agency’s policy on binding coverage without a signed application you may need clarification before answering. Does this question refer to the agency’s policy in place today or at the time of the incident leading to the lawsuit? Does the policy differ for commercial versus personal insurance or does it depend on the insurance carrier writing the policy? If you make assumptions about what the opposing lawyer is asking, you could give an incorrect or inaccurate answer. It is better to pause, identify the gaps in the question and ask the opposing lawyer to fill in those details before answering.

These three tips are the most important to remember when practicing for the deposition. Mock question-answer practice with your lawyer will help keep these strategies at the forefront when you sit down at that table for your deposition. This practice paired with thorough document review will lead you to a successful deposition.

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.