Today's post is the first in a series of posts by Academy friend Crystal M. Uebelher, J.D., CPCU. Crystal is an insurance person and lawyer. Crystal loves to teach non-lawyers about the law and insurance lawyers.
Many insurance people believe that a deposit is something between a great annoyance and a fate near death. One colleague once said appropriately: "I'd rather get my eyelashes 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 get you to say something you will regret. As a lawyer, I think the oral sparring of a deposit is an opportunity to stay sharp. I realize that most people don't see it the same way. In this series of blogs, I challenge you to change your thinking about deposits. I believe that if you understand the process and invest in preparation, you will see deposits as an opportunity rather than a cause for fear.
Where do deposits fit in the discovery?
Let's begin our exploration of deposits with an understanding of how a deposit fits into the litigation process. A deposit is part of the discovery phase of litigation. Unlike most legal words, this means exactly how it sounds like. Discovery is the process of exchanging information between the parties so that everyone has a clearer understanding of the facts and the legal positions that each party takes. Discovery helps the lawyers decide what angles they can attack to win the goal or secure a favorable solution. Or in the worst case, the discovery lawyer realizes that the case must be settled before it is lost.
The discovery includes exchange of documents and answering written questions, called requests. Document exchanges and interrogations usually occur before attorneys request deposits. The answers to interrogations are prepared by your company's lawyer. A good lawyer knows how to prepare interrogative responses to cast your position in the best light. There is also an art to answering interrogations, where a lawyer provides as much information as is needed to honestly and ethically answer the question and not a little more.
If you have already answered the questions, why have a deposit?
A deposit is the opposite lawyer's tool to get more details that could undermine your company's position. Remember that the provision is an oath-white testimony. A court reporter is present and you take an oath to tell the truth, just as you would in a courtroom. In other words, you swear, under the 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 accurate account of questions and answers. This means that instead of your corporate lawyer carefully considering each answer while sitting behind a computer, you have to answer the questions in real time.
Here lies the reason why so many of us fear deposits. The opposite lawyer's main goal at the deposition is to convince you to provide answers that undermine the carefully crafted interrogation responses. It may be new information or information that contradicts the previous hearings, or can undermine the strength of your case. That is why it is so important to understand where the deposit fits into the discovery process. If you are armed with the knowledge of what has already been done and understand the effect of your answers, you can turn the tables on the opposite lawyer.
I will continue this discussion in several blog posts explaining the steps I have taken to prepare and provide deposition evidence. I hope that you will continue to read to learn how to turn this dreaded event into an opportunity to advocate for your business. Then I discuss the questions to ask your attorney to understand how your testimony fits into your company's defense strategy.
Crystal Uebelher, JD, CPCU is an insurance lawyer who is passionate about raising the expertise of lawyers and insurance professionals in the ever-changing issues of our industry. Crystal is the owner of Clarity Education and Consulting, LLC, where she creates meaningful educational experiences for insurance agents, lawyers, and professionals. Crystal also works in the liability department at a mutual insurance company.
Crystal earned her law degree in 2007 from the University of Wisconsin Law School (magna cum laude, Order of the Coif). She received her Chartered Property Casualty Underwriter designation 201
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