Dallas Fort Worth Insurance Lawyer Blog
In order to successfully pursue lawsuits against insurance companies, an insurance attorney must understand how the insurance company looks at their case.
A big part of a lawsuit is deposition witnesses who are controlled by the insurance company. These people are usually the corporate representative, the adjuster, and experts. Hear is a perspective that is primarily from the viewpoint of the insurance company lawyer.
Corporate representative depositions are make-or-break propositions. Sometimes, that choice is out of the hands of the insurance company lawyer but many insurance carriers have identified particular employees for whom giving testimony on behalf of the company is part of their job description. An ideal corporate representative will be someone with general knowledge of the case and the willingness to become a case expert. He or she should also have an unflappable demeanor.
In addition to selecting the right witness, it is important to ensure that the deposition topics are narrowly tailored and stated with “reasonable particularity.” It is useful to have a conversation with the attorney representing the insured to clarify vague topics and to limit overly broad ones, as both parties have an interest in a shared understanding of the topics at issue and bringing a knowledgeable and well-prepared representative to the deposition. When deciding whether to involve the court, it is important to familiarize oneself with the case law on both federal and state requirements to protect your client from improper corporate representative deposition notices. For instance, depending on the jurisdiction, it may be prudent to move for a protective order instead of simply objecting to proposed topics.
Once the deponent is selected, preparation is paramount. It is prudent to first have fact-gathering meetings. Since a corporate representative is obligated to present the information that is available to the company, it is useful to outline what information needs to be gathered and by whom. After those meetings are accomplished, it is then prudent to schedule at least two face-to-face meetings with the deponent. These sessions should allow for time to practice with mock cross-examination. This is important for experienced deponents as well as rookies.
The deposition of the handling adjuster has been referred to as “A Stake in the Heart of the Vampire.” While a weak adjuster witness may not cause an insurance company case to crumble into dust, it certainly will affect its defensibility. Unlike the corporate representative, the insurance company lawyer will have no choice in selecting this witness. Again, preparation and practice is the key to survival, but the preparation process may be even more challenging, as a busy adjuster will be taken away from her regular duties. The challenge increases when the handling adjuster is no longer employed by the insurance company. In that case, the insurance company lawyer will need to have a conversation with his client about representing the former employee, as they likely have agreements in place governing those situations. In preparation for the deposition, the adjuster should conduct a detailed review of the claims notes, correspondence, and any prepared estimates. It is also important to prepare these witnesses to practice answering questions without becoming defensive.
The insurance company lawyer will want to identify causation experts early in the case. The insurance carrier client may have already used an engineer to provide a report. The insurer may want to have their own engineer and cost-of-repair expert reinspect the premises and get a gut check on their initial analysis. While it is not pleasant to have to tell an insurance company client that the initial claims analysis, coverage determination, or cost-of-repair estimate was wrong, that news is much better relayed at the beginning of the case rather than after months of litigation.
The insurance company lawyer will also want to consider whether to hire a claims handling expert, as it can be useful to have an expert explain the insurance claims process to the jury. The lawyer should make that determination well in advance of any expert designation deadlines. There is nobody more qualified than an insurance claims handling expert to find the quicksand in the case, and the insurance lawyer does not want to hear that news the day before it is time to designate the expert.