Guest Post: The Insurance Professional’s Guide to Depositions, Part 2 – Understanding Your Role in the Litigation

Today’s post is the second 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.

It happened. You received the dreaded email or phone call advising that your deposition will be taken. Your instinct may be to stick your head in the sand. This is a reasonable response. Most people do not like conflict and a deposition is, after all, part of an adversarial process. Instead of disengaging, try to pull your head out of the sand and ask the right questions to set yourself up for deposition success.

Question 1: Am I a fact witness or a corporate representative?

This is the most important question you must ask before you begin preparation for a deposition. Let’s talk about this distinction. Fact witnesses testify about personal knowledge of the facts that might be relevant to the litigation. This is the most common type of deposition. It is likely your name appeared in a document or in prior discovery responses. This led the opposing lawyer to believe you may have more information to share. As a fact witness, your role is to truthfully answer questions about what you remember.

A corporate representative deposition has a much larger scope. The law considers corporations and other limited liability entities to be a person. This is what we call a “legal fiction”. Obviously, a company is not a person; it is a collection of individual people working to provide a good or service. So how does a lawyer depose a company? The opposing lawyer is allowed to depose a real person who is designated to speak as the company, i.e. the corporate representative. You may also hear this referred to as a Rule 30(b)(6) deposition, which references the federal rule that creates a right to these depositions.

We’ll talk more about preparing for a corporate representative deposition later in this blog series. For now, let’s focus on fact witnesses.

Question 2: Why me?

In every case there are certain facts each side needs to establish to win. Each lawyer knows the key facts that are at issue. Much of the discovery process is aimed at building evidence to prove those key facts to a judge or jury. There is a good chance the opposing lawyer believes your testimony will help establish one of those key facts and damage your company’s position. This means it is important before your deposition to understand why you are of interest to the opposing lawyer.

For example, let’s assume you are an insurance agent whose agency is being sued by a client for failure to procure employment liability insurance. A key fact the client may need to prove is that you assumed a duty to obtain such insurance for them. The details of meetings or communications with your client will certainly be pivotal to the case. Therefore, before giving a deposition, you should be prepared to discuss your best recollection of those key conversations or emails. Having this knowledge also allows you to better recognize the traps the opposing lawyer may set in questions that seem innocuous.

You should also ask for a copy of the Notice of Deposition. This is a formal legal document requesting your deposition. It may list topics the opposing lawyer wants to discuss with you and documents you are required to bring along to the deposition. This document is another source of information about why you are being asked to sit for a deposition. You should tell your lawyer if there are topics where you lack personal knowledge. For example, if you are a claims representative being asked to testify regarding underwriting guidelines that applied to the insured, mention to your lawyer that you do not have the personal knowledge to testify on this topic. Or if there are documents that might exist at your company, but you have never seen them, you should mention this too.

Now we know why you are of interest to the opposing lawyer. This information will guide you through the next phase of preparation. Check back next week to learn the next steps.

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.

Topics Lawsuits