Doug Wood, an attorney and member of the California-based law firm of Clark Hill, offered some tips for adjusters on preparing for a deposition during an interview with Claims Journal. Wood, presented on the subject at this year’s Combined Claims Conference held in Orange County, California.
“There’s a lot more to testifying than just showing up and truthfully answering the questions that are being put to you,” Wood said. “In a small part, that’s because there’s a skilled lawyer sitting on the opposite side of the table whose job it is is to get you to say things that you wouldn’t ordinarily say if you and I were just sitting at the lunch counter having a conversation.”
There are several techniques that attorneys can use while engaging testimony.
“It’s just not as easy as showing up, raising your right hand, and telling the truth in response to the questions,” Wood said. “The fact of the matter is, the lawyer is there to manipulate you into saying things that harm your case and help their case. That’s the point of the exercise.”
According to Wood, witness prep is a bit like a ballplayer getting coached on skillsets.
“We work on the kinds of lawyer tactics that might be used, and try and equip witnesses with a tool for each of those tactics that will help them recognize the tactic that’s being used and then deal with it in an effective way so the truth, as they know it and believe it, actually ends up in the record as their testimony,” Wood explained.
Wood discussed the seven deadly sins of adjuster testimony.
“The first one is the ‘Baiting Game‘. Don’t take the bait. One of those human tendencies is to want to explain or to be defensive, or to be prodded into anger. Whenever a questioner can get the witness doing any of those things, instead of being calm and methodical and thoughtful, we lose our objectivity and we begin speaking with emotion instead of with calm logic,” Wood explained.
One technique to avoid baiting is to evaluate, formulate and articulate when responding, said Wood.
The second major sin is ‘Beware the Sound Bite’.
“I think one of the most famous ones we all know is, ‘If the glove don’t fit, you must acquit’. We all know that huge, months-long case got boiled down to that little sound bite,” said Wood. “Bad faith cases really are no different than that. The plaintiff’s lawyer is looking for some quippy little handle. Ideally, they get some witness to say it in a deposition.”
‘No Absolutes Unless Absolutely Certain’ is the third sin.
“Sometimes in life, something is as simple as a yes or a no. In the world of bad faith cases, it’s much more often about it depends on the circumstances and what the facts are. You talk about those kinds of qualifiers to make sure that the testimony we’re giving is truly accurate and not some absolute we’re going to get stuck with that harms us later,” said Wood.
‘Responsibility Trap’ is the fourth deadly sin.
“It’s really about the blame game to some degree and how a plaintiff’s lawyer might tend to exploit somebody lower in the food chain,” explained Wood. “To blame management or vice versa, in management to blame the people underneath them.”
Some ways to avoid this trap is to provide positive testimony, he said.
“That we’ve hired the right kind of experts. We’ve relied on those experts. We have a system in place for management consideration of claims, resolutions and the like,” said Wood.
‘Credibility’ is the fifth sin.
“Certainly, trial is really the battleground. It’s about who is more credible. Who is more worthy of my verdict is the question the jury is asking,” explained Wood.
There are techniques to enhance witness credibility and things that can detract from credibility.
Wood said the last two sins may be the most important: ‘Forks in the Road’ and the ‘List Question’.
“‘Forks in the Road’ are pretty easy. ‘Forks in the Road’ are in any given claim file evolution, there are critical decision points where you can go left, or you can go right. Do we assert a resolution of rights? Do we ask for an examination under oath? Do we want financial documents from the insured? Whatever it may be,” said Wood. “When you show up in your deposition, you can be pretty darn sure that the questions you’re going to be asked will include those critical ‘Forks in the Road’.”
Wood described the ‘List Question’ as any question that requires a list of items be provided to the questioner.
“They’re usually disguised. If I ask you why did you deny this claim? That’s a ‘List Question’, isn’t it? It’s really asking you, ‘Please tell me all the reasons why you denied this claim?’ That’s usually a pretty big answer,” Wood said. “Sitting in a deposition under pressure, it’s unlikely people off the top of their head are going to get that whole list because the claim file is big by the time you get to a denial, for example.”
One way to address the list question is by recalling the key items that ought to be part of the list, he said.
“Knowing that we’re not going to remember that whole list, we always want to end one of those ‘List Questions’ with what I call a ‘List Question Qualifier’. ‘Some the reasons we denied the claim were …’. ‘Some of the things we considered included …’. The goal of the questioning lawyer is to get you to that definitive list,” explained Wood. “If you try at trial to add to that list, ‘Oh, I forgot about X, Y, Z.’ in my world, out comes the red notebook and I whack the witness upside the head and impeach them. ‘Well, wait a minute. You raised your right hand and you swore to tell the truth, the whole truth, and nothing but the truth, just like you have today. You didn’t give us those additional things, did you?’ ‘Oh, by the way, did you talk to your lawyer between now and the time you gave that depo?’ That kind of credibility attack can be very harmful,” explained Wood.
A ‘List Question Qualifier’ helps a witness stay out of the quagmire, Wood said.