Today’s post is the first 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.
Many insurance professionals consider giving a deposition to be something between a major annoyance and a fate close to death. A colleague once aptly said, “I’d rather get my eye lashes pulled out one by one than give a deposition.” These negative reactions are a natural response to the idea of sitting across the table from someone whose main goal is to make you say something you’ll regret. As a lawyer, I find the verbal sparring of a deposition to be an opportunity to stay sharp. I realize that most people do not see it the same way. In this series of blogs, I will challenge you to change your thinking on depositions. I believe that if you understand the process and invest in preparation, you will view depositions as an opportunity instead of a cause for dread.
Where do depositions fit into discovery?
Let’s start our exploration of depositions with understanding how a deposition fits into the litigation process. A deposition is a part of the discovery phase of litigation. Unlike most legal words, this one means exactly what it sounds like. Discovery is the process of exchanging information between the parties so everyone has a clearer understanding of the facts and the legal positions each party is taking. Discovery helps the lawyers decide what angles they can attack to win the case or secure a favorable settlement. Or in the worst cases, discovery makes the lawyer realize that the case needs to be settled before it is lost.
Discovery includes exchanging documents and answering written questions, called interrogatories. Document exchange and interrogatories usually occur before the lawyers request depositions. The responses to interrogatories are drafted by your company’s lawyer. A good lawyer knows how to draft interrogatory answers to cast your position in the best light. There is also an art to responding to interrogatories, in which a lawyer provides as much information as is required to honestly and ethically answer the question and not a tiny bit more.
If you already answered the questions, why have a deposition?
A deposition is the opposing lawyer’s tool to draw out more details that might undermine your company’s position. Remember, the deposition is sworn testimony. A court reporter is present and you’ll take an oath to tell the truth, just as you would in a courtroom. In other words, you are swearing, under risk of being guilty of perjury, that what you say is true. Each statement made during the deposition is transcribed by the court reporter to provide an exact record of the questions and answers. This means that instead of your company’s lawyer carefully considering each answer while sitting behind a computer, you must answer the questions in real time.
Herein lies the reason so many of us dread depositions. The opposing lawyer’s main goal at the deposition is to convince you to give responses that undermine those carefully crafted interrogatory answers. It could be new information or information that contradicts the prior interrogatories, either can undermine the strength of your case. This is why it is so important to understand where the deposition fits in the discovery process. If you are armed with the knowledge of what has been done already and understand the effect of your answers, you can turn the tables on the opposing lawyer.
I’ll be continuing this discussion in several more blog posts explaining the steps I have taken to prepare for and give deposition testimony. I hope you’ll continue reading to learn how you can turn this dreaded event into an opportunity to advocate for your company. Next up I’ll discuss the questions to ask your lawyer to understand how your testimony fits into your company’s defense strategy.
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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