The Deposition Testimony

Don't volunteer information. Discovery is used as a tool to gather all of the information from the opposing party. Your deposition is important enough to the opposing lawyer for his client to bear its expense. There is no need to assist that lawyer or her client, and by volunteering information, you do just that. Don't answer questions that weren't asked. Don't volunteer information or documentation. This is not meant to imply that you should not explain yourself, but rather that you need not provide information that has not been asked of you.

Use your lawyer. Assuming that your involvement in a claim is relevant to the litigation, you possess knowledge of facts necessary to your employer in defending the suit. But your lawyer has the legal knowledge.

Let your lawyer assist! She knows how to prepare you, how to explain the legal elements of the case, and usually, how to read the personality of opposing counsel. If your lawyer is not approachable, seek to remedy that fact; there must be a mutual, free flow of information between you and counsel.

Picture the jury. Treat the deposition as though you were sitting on the witness stand in court. Some, if not all, of your deposition testimony will be presented to a jury at trial. So from the moment you enter the room in which you will be deposed, treat the matter with the utmost of respect, and assume that what you say is recorded, even if a lawyer says, it's off the record.

Preparing for Deposition

Part of not volunteering information means not creating new documents. As mentioned previously, the discovery process is opposing counsel's opportunity to gather information that you possess. The creation of any new documents that were not already a part of your claim file may educate opposing counsel or even reveal mental impressions, legal strategies, or theories regarding the case that may not have been otherwise discoverable. As a practical matter, if you have any relevant thoughts prior to your deposition that you want to share with your counsel, call and inform her over the phone.

Although the objective is to refrain from volunteering information, do not destroy or throw away existing documents or information. Everything from the claim file to e-mails sent between adjusters may be at issue, and you should seek the advice of the company's counsel regarding your duty to preserve these.

The parties to litigation have certain duties regarding the preservation of the documents relevant to the lawsuit, and those duties may have commenced even before the lawsuit did. In this age of frequent litigation against insurers, the anticipation of litigation is an oft-disputed term and it has a distinct legal meaning. Whether or not the information you possess must be preserved is a decision that's likely best left to counsel. Moreover, courts define "document" very loosely. That means the destruction of hard copies, e-mails, tape recordings, computer files — any type of evidence that relates to the claim — may have lasting effects on the defense of a lawsuit. The failure to preserve documents could possibly result in court sanctions against the insurer.

The next step in preparation involves applying principle two: meeting with the attorney who will be providing representation before the deposition. More than once. The need to utilize counsel will be dependent upon several factors, such as the severity of the underlying claim, the difficulty of the facts surrounding it, the relative importance of your testimony, and the causes of action at issue in the case.

The attorney will be able to advise you generally on how you should prepare, especially since the law generally states that documents reviewed in preparation for deposition must be made available to the opposing party for review, upon their request. More importantly, the relevant part of any such document may be admissible at trial. This is critical to your attorney's decision making regarding preparation for your deposition. Your attorney can help you plan your preparation and ensure that you are not reviewing documents that would force the insurer to turn over documents that it otherwise wouldn't have to.

The attorney also will be helpful to you by giving you the simple breakdown of the legal issues that are involved. By becoming familiar with the law involved, claim professionals will be able to recognize opposing counsel's questions for what they are. This will enhance your comfort level with the process while at the same time making you a more effective witness.

The attorney will also be helpful in preparing you for the particular attorney that will be deposing you. All attorneys have different styles that are unique as each individual person. There are bullies, buddies, and those who will seek to lull a subject to sleep by asking mundane questions for hours on end, all in the hope that the witness will somehow surrender information she wouldn't have otherwise. Your attorney may be able to enlighten you, especially if she knows opposing counsel from prior depositions or cases.

It should be noted that the attorney represents the insurance company. As the insurance company's employee, that attorney also represents you, within the scope of your employment. However, you must be careful to note that the attorney represents the company.

The third principle, picturing the jury, is not paramount while preparing for a deposition, but it does come into play when actually presenting deposition testimony. Bear in mind that the deposition's final destination is in the courtroom with the jury. As you prepare, it may be helpful to begin organizing your thoughts in a way that would translate well to a layperson who knows little or nothing about claims.

Giving the Testimony

The three principles come into play again during deposition testimony. Hence, we revisit the first principle: Don't volunteer information.

Depositions are transcribed word for word. As technology has progressed, many deponents and counsel have immediate access to the transcribed version of the testimony. Many depositions are videotaped, as well. At all times, be aware and act as though you are being recorded. Silence is not generally transcribed, so you may take time to formulate an answer. Answer the question you have been asked, and don't volunteer information that was not requested.

Also, avoid trying to argue through an answer. If you are uncomfortable with your answer, an argument will not improve your answer or the transcript. In fact, it will only educate the interrogating attorney to the fact that you may get rattled when pressed. Such an observation may make you a target for an aggressive cross-examination at trial.

During the deposition, you are under oath. If you are unsure about an answer, be sure to say just that. In fact, "I don't know," is a perfectly acceptable response, when true. Do not guess or speculate, and do not answer questions that are unclear or vague. Lawyers have a duty to ask clear questions of you.

The second principle of using your lawyer also comes into play at this point. It is important to be aware of what your attorney can do for you during the deposition. Unlike at trial, the attorney has more limited role at the deposition. You will be largely unable to consult with counsel once you are placed under oath, and your testimony will be your responsibility.

The company attorney may lodge certain objections, but her ability to prevent you from answering a question is limited by the rules of civil procedure. Form-of-the-question objections, as the name suggests, relate to the way in which the question was posed to you, or its wording. Other than these objections and the preservation of the attorney-client privilege, counsel will be forced to rely on your answers, and therefore, on your preparation. You should prepare until you are comfortable going into the deposition with minimal support from the attorney.

Lastly, we revisit the third principle: Picturing the jury. Claim professionals speak another language that the average person does not understand. Many terms, commonplace in the insurance industry, are beyond the knowledge of a layperson and may render your testimony confusing, or worse yet, misleading to a juror. Your ability to explain your actions and the company's position are dependent upon your ability to communicate these facts to a juror. This ability will derive directly to your preparation with counsel in advance of the deposition, as well as your ability to consistently bear in mind your audience. Your audience is the jury, not opposing counsel.

Your deposition, whether it is your first or one of many, can be a source of great anxiety. You are in a position where you likely possess a tremendous amount of information about a particular claim, so your deposition may be critical to the defense of a lawsuit. The three principles stated above are a shortened, but hopefully helpful, primer on the preparation for your testimony.

Robert T. Horst is managing partner of Nelson Levine de Luca & Horst, a national law firm focused on the insurance industry. He can be reached at 610-862-6580, RHorst@nldhlaw.com, www.nldhlaw.com.

Jeannie Park is an associate at the Philadelphia office of Nelson Levine de Luca & Horst, where she focuses on coverage disputes and bad-faith litigation. She can be reached at 610-862-6518 or JPark@nldhlaw.com.