Introduction

In the dynamic arena of legal battles, the deposition stands as a pivotal moment, especially for insurance defense attorneys. This blog post delves into the nuances of preparing for and executing a deposition, a critical tool in the arsenal of an insurance defense attorney.

The Significance of Depositions in Insurance Defense

In insurance defense, the depositionis a strategic tool to understand the plaintiff's case and identify weaknesses,inconsistencies and obtain knowledge about additional paper discovery toobtain. The goal is not to "win" the deposition but to gather relevantinformation. This includes understanding the plaintiff's claims, injuryhistory, and any treatments or procedures related to the case at hand.

Getting the deposition strategy and execution right is critical as you typically only get “one shot” at it.

Preparing for Insurance Defense Depositions

• Thorough Preparation: Review all case documents, including the plaintiff's claim history and medical records. Understand the case's core elements and prepare questions that directly address these points.
• Know Your Objective: Each deposition has specific goals, such as clarifying alleged injuries or understanding the plaintiff's claim history. Understand the type of claim - whether it's a motor vehicle accident (MVA), premises liability, discrimination, etc. Know the claim's elements and the injury aspect which is common in most cases. Define what you aim to achieve.
• Master the Deposition Dynamics: Be aware of the deposition procedures, the role of the stenographer, and the absence of a judge. This understanding will help navigate the deposition effectively and will help you instruct the deponent regarding the process. 
• Ethical and Legal Considerations: In preparing your own client for their deposition, remembering the importance of honesty and integrity. Encourage clients to be truthful, as misleading or inaccurate statements can severely undermine the case.
• Effective Questioning Techniques: Develop a questioning strategy that allows for open ended questions. A deposition is not typically a time for cross examination, rather to learn as much information as possible. 
• Handling Objections: Understand how to handle objections appropriately by reviewing the rules in your jurisdiction so you can respect legal boundaries while ensuring the collection of necessary information. 
• Learning vs. Teaching Depositions: Depositions can be categorized into 'learning' and 'teaching' types. Learning depositions aim to gather new information, often conducted early in discovery and should be the most common deposition. Teaching depositions are used to highlight the strengths of your case and the weaknesses of the opposition, especially for an opposing counsel who has alleged a big case, but has not put in the time to review the details. Attorneys are busy and the deposition might be an attorney’s first real view into their own case. This strategic classification helps in deciding the sequence of depositions for maximum impact​​.

When to Schedule the Deposition

Scheduling depositions in insurance defense requires a balance of strategic planning and adaptability. The timing and order of depositions can significantly affect the case's trajectory.

• Paper Discovery is Complete: In a personal injury case, it is best to have most of the discovery (medical records) before taking a Plaintiff’s deposition. Otherwise, there could be additional treatment learned of after the deposition you may not have the opportunity to ask about. Similarly, if a surgery is planned, wait until after the surgery so you can ask about recovery and current physical state. 
• Scheduling Key Witnesses: Key witnesses require careful scheduling. While it's common to depose them after paper discovery has been obtained, sometimes, an early deposition might be more useful, especially if the case hinges on specific facts that only they can clarify or information the witness has that could lead to further paper discovery. The timing should be decided based on the unique needs of the case​​.
• Expert Depositions: Expert witnesses demand a different approach. These depositions should be meticulously planned, considering the expert's role and the impact of their testimony. Typically, expert depositions are scheduled later in discovery, allowing for comprehensive preparation and strategic timing​​.

Conducting the Deposition

In the realm of insurance defense, conducting an effective deposition is a blend of art and science. Drawing from various expert sources, here are augmented insights into conducting depositions:

• General Questions: Begin with basic inquiries about the deponent's job, educational background, residence and surface level family questions. These can be crucial for understanding who they are, potential wage loss, how they will present as a witness on the stand and what might be important to them for a non-economic damages claim.
• Prior Medical Treatment: Explore every part of the plaintiff's medical history, including all treatment centers, primary care providers, surgeries, and any alternative treatments like chiropractic care or acupuncture. Make notes of gaps in medical history to subpoena later.
• In-depth Investigation: People don’t always have great memories. However, they do not tend to forget ambulance rides and hospitalizations. Ask if the deponent has ever ridden in an ambulance or gone to the Emergency Department. Remember to be creative in extracting information. For example, if the plaintiff cannot recall the name of a facility where they received treatment, use location cues or Google Maps to jog their memory. 
• Outline Creation: Create a concise outline of topics and subtopics pertinent to the deponent. This approach promotes fluidity and allows for active listening and adapting questions based on the deponent's answers. Do not be hesitant to go outside of your outline. You will miss opportunities by not following up on the answers to the questions provided if you simply move on to the next question on your script.
• Execution Tactics: During the deposition, execution is as important as preparation. Silence can be an effective tool to elicit complete responses from a non-responsive deponent. If a deponent feigns misunderstanding, counsel should seek clarity on the specific area of confusion. This approach either garners the necessary testimony or exposes the deponent’s evasiveness, affecting their credibility.
• Establishing Timelines: In many cases, timelines are critical. If a deponent struggles to provide specific timeframes, elicit testimony to challenge their memory claims. This strategy can lead to more precise information or highlight inconsistencies in their testimony.
• Managing Objections: Be prepared for obstacles, such as an overzealous opposing counsel making speaking objections. Knowing how to handle these interruptions while maintaining the flow of the deposition is essential. This includes understanding and applying local rules, like Florida Rule 1.310(c) or ORCP 39D(3) in Oregon, which both mandate concise and non-argumentative objections. If opposing counsel cannot work within the rules, submit a copy of the rule as an exhibit to the deposition and refer to it when counsel makes an inappropriate objection.  
• Listening and Adaptability: Active listening is key. Attorneys generally like to talk, but depositions are about listening and interacting. Be ready to follow new leads or information revealed by the witness. This requires being flexible and not strictly adhering to the outline. Witnesses can sometimes provide unexpected information, which may require a shift in questioning strategy.
• Getting the Sound Bite: Focus on obtaining clear, concise admissions or statements that can be used at trial. If a witness provides a desired answer, move on without allowing them the chance to retract or change their statement. This tactic is crucial when deposing an adverse party. Conversely, if an answer is not clear, ask questions until it is clarified. 
• Using the Deposition for Settlement Leverage: Although this should only happen on rare occasions, consider using the deposition to educate the plaintiff about weaknesses in their claim. This can help in managing expectations and fostering earlier settlements. Consider whether it is beneficial to confront the witness with evidence now, rather than holding it for trial.  
• Questioning Techniques: Balance open-ended questions with leading ones, especially when dealing with adverse witnesses. Open-ended questions help cover the entire scope of possible testimony, while leading questions can be used strategically to elicit specific admissions.
• Defining Areas of Testimony: Break down the witness’s testimony into topics, starting with broad questions and becoming progressively more specific. This ensures comprehensive coverage of all relevant areas and avoids missing crucial details that could surface at trial.
• Commanding the Deposition: As the attorney, be confident, firm, but not rude. An attorney is strategically more likely to obtain more information if the witness feels comfortable sharing.  
• Zoom Depositions: In virtual settings, observe the environment. Are there any documents or people in the room? Monitor any on-screen activity and inquire about open chat applications. If they have documents in front of them, you are entitled to them as defense counsel.

Special Focus Areas

Special focus areas in insurance defense depositions require a strategic combination of thorough preparation, understanding of technical subjects, flexibility, and a keen ability to challenge and discredit opposing witnesses effectively. These areas are pivotal in shaping the case's narrative and countering the insurance company's defense strategies.

• Past Claims and Insurance: Investigate prior claims, both in and out of litigation, and any disability claims. Understanding their history with insurance and previous legal actions can provide valuable insights.
• Post-Accident Behavior: Scrutinize what the plaintiff did right after the accident and in the subsequent days or weeks. Inconsistencies or unusual activities can be telling.
• Wage Loss Examination: Inquire about employment details, tax filings, and any secondary employment. This information is vital in understanding the economic impact of the incident.
• Mechanism of Injury: If considering a biomechanical expert, ask detailed questions about the plaintiff’s physical response during the incident. This information can be vital for reconstructing the event.
• Honesty with Treatment Providers: Ask plaintiff if they were honest with their treatment providers. If they were, you know it will be more difficult for them to challenge what is in the medical records. If there is a reason, they did not share honestly with their treatment providers, you need to know.
• Legal Representation: Understanding their path to hiring an attorney can offer insights into their motivations and strategy. You should never seek information covered by attorney client communications. However, most jurisdictions when they hired an attorney is not considered privleged communications.  
• Social Media Scrutiny: Investigate the plaintiff's social media presence. This can reveal inconsistencies in their claims or provide more context to their life post-accident. Ask what social media sites they use. Ask for their handles. Ask what they post about or whether someone else in their family posts. See about leveraging a third-party social media account to better see what might be shared with friends only but still public. 
• Loss of Consortium: Loss of consortium is one of the least favorite topics. If applicable, explore claims related to loss of consortium, but handle these questions professionally. Every loss of consortium claim is different so you must be willing to ask all of the questions to get a good understanding of that plaintiff’s claims.

Post-Deposition Actions

• Summary and Follow-Up: Immediately draft a summary and outline recommendations for further action, such as subpoenaing additional records or deposing other witnesses. Keep your team and insurance adjuster informed.

Considerations for a Second Deposition

In rare cases, a second deposition may be necessary due to new incidents, incomplete discovery, or new evidence. Be judicious in deciding when to request a second deposition.

Conclusion

Mastering depositions requires a blend of legal acumen, psychological insight, and strategic planning. For insurance defense attorneys, the deposition is more than just a procedural step; it's an opportunity to unravel the complexities of a case and pave the way for a favorable outcome. Remember, the art of deposition lies in the details and the preparation.

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