INSURANCE COVERAGE LITIGATION:
A FEW DEPOSITION QUESTIONS
Michael Sean Quinn, Ph.D, J.D., C.P.C.U., Etc.
(O & C) 512-656-9759
relevant statutes. Both sources require
insurer to move “with dispatch” (my term) in handling claims. Sometimes statutes specify particular
internals, e.g., 10 days, two weeks, etc. Usually, those dates are measured
from the insurer receives needed material from the insured.
it important for an insurer to determine their coverage position as quickly as
of “Yes,” matters are actually more complicated
than answering a simple “Yes.” Now for the
problem. In depositions, examining counsel always tries to get “Yes” answers to
questions like this one. This “push”
needs to be resisted.
The term “possible” is ambiguous, and can easily create confusion. If the term “possible” means “as quickly as
it could be done,” then such a decision can be made in a matter of minutes, and
that is the intent of the lawyer for the policyholder. Rhetorically, the goal is to create a trap
where the testifying adjuster or expert will be committed to an absurdly short
period of time.
able to make the decision based upon evidence and reason is crucial, (2) the
use of evidence and reason requiring access to relevant information, and this
often means documents and people, (3) the analysis at the insurance company (or
its managing general agent or its independent adjuster and then itself) needs
stop be able to think about it, and (4) trying to do something in a reasonable
manner takes time.
may be advisable to include the world “dispatch,” or a word equivalent to or
like it. So here are some other
mean by “possible”?
situation.” A witness could stop there,
but that’s ill advised. It looks like
the witness is trying to avoid answering the question forth rightly.
mean to be saying “when it can be done reasonable on the basis of actual
information provided to or obtained by the carrier. Trying to do something
right may takes time.”
stop right there, but if examining counsel really wants an answer, give counsel
process directly, seeking information as part of that process, thinking about
the problems objectively, obtaining help as needed, and then drawing a
conclusion. All of this should be done
responsive.” And if the lawyer is a donkey’s behind, this will said, “Now,
listen to my question.”
opinion, the best response is simply to say,
anything else to say. I’ve answered your question.
lawyer is a large donkey with a huge behind, he might say,
to my question.
a question, so the witness does not need to response. Our large donkey might
question do you think I asked?
repeat it. (2) Ask the court reporter to read it. (3) Ask counsel to ask it
again. Of these #(3) is the best.
simply keep repeating what you have said, in one way or another. Examining counsel is eating up his clock.
variation on this discussion. Suppose the lawyer’s question is this:
important for an insurer to try and determine and announce its coverage
position asap, true.
leading question, but a “Yes” or “No” answer should be avoided. Here are
please spell it out for me.
you’ve asked when you put it this way.
will do. There is no—really, NO!–such thing as a “’Yes’ or ‘No’”
(This is a nice way into the idea of the “possible.”)
lawyers will almost always tell a witness that if he does not understand a
question, ask him/her to explain it. So do this:
is figuring in here.
don’t really see how the term “possible” works in this sentence.
what does “possible” mean in your questions.
fall into deposition traps! Go slow. Listen carefully. Hesitate. Don’t hesitate to hesitate.
Originally posted on 10/10/2014 @ 10:42 pm