Firm Newsletter - August 2015

Photo by Stanislav Popov/Hemera / Getty Images

Photo by Stanislav Popov/Hemera / Getty Images

Depositions: The Tool that Can Make or Break Your Case

What is a deposition?

A deposition is a sworn statement made by a witness outside of a courtroom. They are frequently used to investigate the facts of a case. Initiated by the parties during the discovery phase of the litigation process, the court does not have much involvement in them. Depositions are usually inadmissible in trial because they are considered hearsay. However, there are limited instances where a deposition is not considered hearsay and can be used during a trial. Some hearsay exceptions include: 1. when the party admits something against his or her interest 2. when the live witness testimony in court is inconsistent with the deposition of the same witness and 3. when a witness is unavailable at trial. During these instances attorneys can use these sworn statements to convince a jury of his or her position and quite possibly win a case.

Who can get deposed?

Anyone that has relevant knowledge about the case can be deposed so long as the deposition is not being sought for an improper purpose. However, there is much in the way of case law dealing with depositions of insurance company employees, which permits some control of and relief from what are often onerous and expensive deposition requests. If the proper paperwork is filed then courts will generally follow a procedure called the “apex doctorine.” This doctrine protects higher level employees from being de-posed until after the depositions of those working at the ground level are taken first. It forces the party requesting the higher level employee be deposed to prove that 1. The potential deponent has unique firsthand information related to the claim and 2. There is no other way of retrieving the information because those methods have been used. Both corporate executive depositions and depositions of insurance company employees are commonly taken in insurance coverage cases.

Things to avoid while being deposed
An adjuster’s deposition can be the backbone of defense counsel’s case so long as the following pitfalls are avoided.

1. Not being prepared
Opposing counsel may ask about all of the individuals who worked on the claim file. Asking these types of questions may “trap” an adjuster by probing questions to gain responses supporting one course of action when the colleague really took another. These contradictions can hurt the jury’s opinion of an adjuster’s competency level. One solution to this pitfall is knowing the file and preparing an outline or timeline. Additionally, be prepared to discuss the actions done by a colleague.

2. Volunteering information
Sometimes deponents get nervous and answer the question asked by opposing counsel and continue talking. Deponents should answer the question asked but refrain from giving more information than necessary. Deponents should only state what they know they are not expected to justify facts or speculate.

3. Not preparing for a video deposition
Make sure that if the deposition is being videotaped, the deponent be prepared in the same way as if he was going to trial. He should be aware of professional dress, maintain eye con-tact, be articulate, confident, and provide complete thoughts.

Deponents should try to avoid the above mentioned common pitfalls to provide opposing attorneys as little ammunition to use against the deponent at trial as possible.

Depositions are an important tool in the litigation process and if used correctly, attorneys can use them to bolster and possibly win their cases.

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