Depositions: “. . . sir. . . .”

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In depositions, when a questioning lawyer is exasperated with the answer (or answers) of a witness, s/he will sometimes repeat the questions, more or less, and punctuate it with “sir” or “madam” 

Consider the following: Q. Why was that loan paid before it was due?A. Was it?Obj. Objection, not responsive.Q. The loan was paid before it was due, was it not?A. I don’t really understand your question?Q. I am asking you, sir, about the loan.  Do you understand what is being discussed?

The same gambit can also be found when  the deposition is that of a woman:

A. I am asking you, madam, . . . .

This component of a question is actually a condescension, a not so hidden insult, a hidden insult, and a derision, and what it looks like it, a criticism.  It is not simply a civil request.

The problem is that it is not clear what defending counsel or the witness is supposed to do about it.  An objection? Explicitly letting the questioner know that we glean his supposed subtly is a good route, but it is hard to know how to do this.  After all, the questioning lawyer has said something which appears to be dignified.  Of course, if the witness is Chinese, or something like that, and does not speak English very well, the insult is especially, though passingly, ugly.

There is a whole range of other problems, however.  Maybe the witness has it coming.

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Insurance: Duty of Good Faith–Statutory Basis

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Statutory criteria for insurer bad faith in dealing with insureds exists in almost all states. Sometimes it is based on the Model Act, sometimes not.  The Model Act requires that insurers have rules, principles or guidelines for claims adjustment.

Texas law is more-or-less typical. §542.004(b)(4) of the Insurance Code that is–as a whole–over 2000 pages and reads in part as follows: “[The following act] by an insurer constitutes [an] unfair claim settlement practice: failing to adopt and implement reasonable standards for the prompt investigation of claims arising under the insurer’s policy[.]”

Now, how should the words “adopt” and “implement” be understood.  Here is a suggestion. “Adopt” means: “create, draft and make company rules.”  Taking over someone else’s system counts as these. Nothing can be “adopted” unless it exists.

“Implement” means that the system of rules, principles, guidelines, and so forth, must be made be known to and required of adjusters.  A system of company directives are implemented only if there are negatives for failing to follow them (or–at least–act in accordance with them).  Every act or omission counts as a violation that is inconsistent with implementation. The components of the system must be enforced. Violators have to be penalized in some way for prohibited acts or omissions and there are lots of ways to do that.  Probably such penalties should be formal and written ranging from negative marks in a periodic review to discharge.

A failure to do any of these counts as a violation of §542.004(b)(4).  At the same time, the formulation here is obvious enough, and it can be conformed with easily. Arguably what is said here is nothing but an orderly conceptualization of already existing understandings and practice.

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Expert Witness: “Objection. Not Responsive” Whose Objection?

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Here is what might be called: The Lawyer’s (L’s) Own Witness Problem

An expert witness is giving a deposition. There are three lawyers in the room.  The expert witness is giving an opinion in the hire of P (or, presumably on behalf of P).  The three lawyers are (1) the lawyer for P, (2) the lawyer for D(i), and (3) the lawyer for D(ii)  Consider three-question not to be identified here.  L for D(i) gives the objection in the title to Q1.  L for D(ii) gives that objection to Q2.  D(P) gives that objection to the third question. Can L(P) successfully move to strike the question? Can L(P) successfully move to strike the expert witnesses’ answer but not the question?

Does it matter that L(P) is not an expert witnesses lawyer but P’s lawyers, although L(P) is often referred to as L for the expert witness? (It does not really matter what L is for P. The same problem would arise for the lawyers for the defense

Suppose that the witness is P. Can L(P) appropriately object to L D(i)’s questions? Can L(P) validly move to strike the answer of L(P)? Can L(i) validly move to strike the objection from L(P)?  What about a question from L for D(i) that interrupts the question being formulated by L for D(ii)?

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Depositions and the “Uniqueness Answer”

Depositions and the “Uniqueness Answer”

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It is not unusual in coverage litigation for the attorney for the insured to ask a question something like this:

Q. Does this policy cover losses of the following sort [fill in the blank]?A. It can’t be answered.  Every claim is unique.

Or this one: Q. This is a construction motor vehicle.  Your policy covers such vehicles using wheels, true?’A.  Setting aside the exclusions, the answer is still unclear. Q. Why?A. Each claim is unique.A. [Or.]  The facts underlying each claim are unique.

These sorts of questions can go on for hundreds of pages–thousands of combinations.  The answer is certainly not unique.  This answer is a more or less universal pattern.  Adjusters learn it in the analog of the University of Farmers Claims, The College of Hartford Adjustments, The Sort of Graduate School of Tennessee Mutual Workers Comp Insurance Work, and so on.  Even coverage litigators for insurers know the routine, although I’m not sure the lawyers have to teach it to the adjusters; it may be the other way around.

The insurers are quite wrong about the power of the “It’s Unique Answer” (IUA).  In fact, it is quite dangerous, especially in jury trials. For this reason, insurer lawyers should not “authorize” its unlimited or even substantial use, and lawyers for insureds should use it often and encourage it.  Questions that trigger that answer are in the category of those wonderful questions where the examining lawyer does not really care what the answer is.  Whatever answer is given will help his client–the more times the better.

(1)If the adjuster’s point is “I can’t even start answering that question because every case is unique,”  the answer is obviously false, and everyone either knows that or can be taught it in about 5.”

(2) If the adjuster starts giving an answer without thinking about it, s/he may well make a usable error.

(3) The best answer is, “I’m not sure, but I’ll try to give you a conjectural answer.  I may get it wrong, since I am hearing the question for the first time, so far as I can remember.

What is so terribly wrong is the “Every claim is unique, so the question cannot be answered” answer.The answer to this question is both simpler and more complex than one might think.

First, in a trivial sense.  The insurer is right.  All claims are unique.  Consider two claims, otherwise of the same sort, one of which occurs at 6 PM while the other occurs at 6:01 PM.  They are unique with respect to each other.  But that is not really the meaning of “unique.” 

Second, in substantive and non-trivial cases, the insurer is wrong.  This fact the “It’s unique” answer little more-if anything more–evasive.

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Insurance Coverage Opinions

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A Very Small Bit of Insurance Law History

Ever wonder what the early history of coverage opinions was?  When was an early one written in a formal mercantile context involving reinsurance?  Here is a possibility.  It arose in the context of reinsurance.

“[U]nder the date 25th May 1633, we have a legal opinion by Drs. D. de Jonge and J. van Andel on the meaning of the clause ‘to pay when the reinsurer shall have paid’ contained in a marine policy. This was interpreted to give the insurer a reasonable time to collect cash from its reinsurers, but not so as to deprive the insured of his right against the insurer, if for any reason outside the original contract, the latter failed to obtain, if, for any reason, the latter failed to obtain payment from his reinsurers.  Again in 1694, an opinion was given by Paulus Buys and other lawyers of Amsterdam, that where a ship had been insured with the special condition “to sail in convoy,” the underwriters were not liable if the ship sailed without convoy because they had been prevented from minimizing their risk by reinsurance.”

C[ecil]. E[dward]. Golding, A History of Reinsurance with Sidelights on Insurance, (PDF) p. 27 (Waterlow & Sons Ltd,  1st Ed. 1927 & 2nd Ed. 1931).  Sub-Subtitle: Offered as a Memento of Fifty Years’ Service in the Reinsurance World ).  The book was offered for private circulation in honor of  A.F. Pearson & Co., Insurance Brokers, Est. 1877.  This book contains a number of Appendices, which contain reinsurance policies over several hundred years; some are in English, some not; some are in handwriting, others printed.  The book was translated into either Chinese or Japanese; (I can’t tell the difference).

Somehow I doubt we are getting the whole story regarding the 1694 opinion and therefore the policy.—MSQ

What might bad faith causes of action look like in these two cases?—MSQ

When was the first opinion written for cases of reinsurance involving life insurance?—MSQ

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Quinn Quotes

Mistakes always involve being wrong in some way. This proposition may be an analytic truth or even a tautology. A mistake is not always a bad thing. A mistake is often a better learning tool than getting something right. Some mistakes, properly appreciated, are very educational. (It is hard to see how this idea “works” in representing a client.  The usual route of always explaining everything to the client will probably not work here.  Indeed, the idea involves an obvious paradox.~Michael Sean Quinn, PhD, JD, CPCU, Etc.Tweet

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Michael Sean Quinn, PhD, JD, CPCU, Etc*., is available as an expert witness in insurance disputes and other litigation matters. Contact