Taking and Defending Depositions in Insurance Coverage Litigation

ABA Section of Litigation 2012 Insurance Coverage Litigation Committee CLE Seminar, March 1-3, 2012: ICLC IDOL 2012: THE DEPOSITION Taking and Defending Depositions in Insurance Coverage Litigation Anna D. Torres, Esq. Powers McNalis Torres Teebagy Luongo West Palm Beach, Florida www.powersmcnalis.com For the most part, taking and defending depositions in Insurance Coverage Litigation is not very different than taking and defending depositions in other types of litigation. As in every aspect of your case, planning and preparation are key. TAKING THE DEPOSITION The goals of your deposition planning and preparation are: 1) Know your jurisdiction 2) Know your case 3) Know your witness 4) Know your deposition goal 5) Plan your examination Know your jurisdiction: Insurance coverage depositions often cross jurisdictional boundaries. It is important to know what rules apply to the particular jurisdiction and plan on addressing any differences in 1

advance which rules will apply to the deposition, those of the home forum or those of the location forum? Are there any time limitations that you need to be aware of? Are there any rules relating to objections that can be made or not made? Are there any rules limiting who may be present at the deposition, for example, if you want your expert to sit in with you? Will you agree to the usual stipulations? Do you even know what the usual stipulations are? Know your case: At some point in your career you will be at a deposition and the attorney in front of you will say, My name is, and I represent, ummmm, let me check who my client is oh yes, I represent XYZ Corp in this action. No matter how many years of experience you have, you should never be that attorney. An effective deposition requires an intimate familiarity with the case. Review all pleadings, discovery and documents prior to the deposition. Be familiar with the theme and the key issues of the case. Know your witness: To the extent possible, get to know the witness as much as possible prior to the deposition. There is a wealth of information about almost every individual available online. Facebook, LinkedIn, company websites, Google, etc. are all free sources of information. In addition, there are other fee based sources available for conducting background checks. Also, think about how this witness fits into your overall litigation strategy. What role do you expect that the witness will play at trial, if at all? Having some advance knowledge about the witness might also help you determine what the best approach is in questioning the witness in order to obtain the desired information. What is the best tactic for obtaining the most useful information? Will you develop a friendly rapport so that the witness will be open and helpful? Will you be cool and aloof and hope that nervousness will lead to over-talking? Will you be direct and challenging and hope that anger and emotion will lead the witness to lose his or her cool? Know your deposition goal: It is important to have a goal for the deposition. Is this a discovery deposition, in which your goal is to gather information? Is this a trial deposition in which the video or transcript will be used in lieu of the live witness? Are you using this witness to establish critical facts? Will this witness testimony be used to set up a dispositive motion? Plan your examination: Remember the attorney who didn t know the client s name? That attorney will probably try to wing the deposition. And, sometimes, he or she might be able to take an excellent deposition with minimal planning. But, again, this takes many years of experience and, even then, successful attorneys will always advise that winging it is not preferable. So, plan the examination. An outline is always desirable. The level of detail within the outline will depend on your level of experience and you familiarity with the details of the case. The question of whether to write out exact questions or not, can be answered once you know what the goal of the deposition will be. Unless the goal is to establish critical facts or to set up a dispositive motion, it is not necessary, and is probably counter productive to write out questions word for word. If the goal is to gather information, ask open ended questions. If the goal is to establish a specific fact, or to pin down the witness, ask leading questions. If the wording of the questions is critical, then certainly write it down word for word. In any event, try to keep the questions short and to the point. Also consider how you will organize the order of the examination. You may organize your questions chronologically what happened first, what happened next. Other methods of organizing the examination are by subject matter, by the allegations of the complaint, or by document. Consider whether strategic disorganization would be useful. Many witnesses expect the easy background questions first and there may be a strategic advantage to starting with the hard questions. Also, a disorganized examination will make it difficult for the witness to guess where the questions are going or to remember answers to 2

earlier questions. However, it is important to remember that the examination only appears to be disorganized. Organizing the questioning is even more critical you want the witness to be kept guessing, but you must retain complete control and make sure you do not miss any important issues. Finally, are there any areas you want to strategically avoid? For example, in an expert deposition, you may prefer only to establish one or two points, rather than cover each and every opinion. If the witness is not available for trial, it will be more difficult for your adversary to use the deposition. If documents will be used during the deposition, make sure that you have planned in advance. Identify all of the documents you will need, make sufficient copies for use by the witness, the attorneys and for attaching to the transcript. If you have served a notice of deposition duces tecum, make an effort to obtain the documents in advance. While opposing counsel may have strategic reasons to withhold the documents until the deposition, often it is only a matter of asking. Most of the time everyone will be in favor of saving time by having the documents produced and reviewed ahead of time. Also, make sure to ask whether the documents will be produced in hard copy or some other format. Nothing is more frustrating and useless than appearing at a deposition duces tecum and being handed a zip drive and no way to look at what is on it. Finally, the golden rule of depositions is LISTEN to the answers! All your planning and preparation will be for naught if you are simply deafly going through the questions in your outline without listening to the witness answers. Ask follow up questions. Do not be intimidated by the rolling of the eyes of the attorney sitting across from you. If you are curious or unclear about any aspect of the testimony, keep asking questions until you are satisfied. This is likely you only chance to get everything you need from this witness. Do not squander the opportunity. DEFENDING THE DEPOSITION Often there is the erroneous impression that defending a deposition only requires the attorney to show up, make a few objections and drink a sufficient amount of coffee to remain awake. This cannot be farther from the truth. Defending a deposition requires as much planning and preparation as taking a deposition. Your goals when defending a deposition include: 1) Protect the witness 2) Protect the record 3) Control your adversary 4) Control yourself Protect the witness: Most witnesses are nervous and anxious to appear for deposition. They are afraid of looking foolish, or being tricked, or being bullied. Adequate preparation will appease the anxiety and reassure the witness that you are there to protect and control the proceedings. With regard to a corporate representative deposition the first step in protecting your witness is to make sure that he or she is in fact the right witness. Review the notice with the witness and make sure that he or she is in fact the appropriate representative as to each of the subject areas of inquiry. If there is another person who might be more appropriate make sure to advise your opposing counsel that more than one person will be identified as corporate representative. Take the time to meet with the witness ahead of time. The timing of this meeting is important and needs to be considered. Too far ahead of the deposition and the witness may forget what you discussed. Too close to the deposition (as in the morning of) may not allow sufficient time for discussion or to answer the witness questions. Also, some people need time to process information. A longer meeting one or two 3

days before the deposition followed by a short coffee meeting the morning of the deposition typically works well. The preparation will be fresh in the mind of the witness and they will have had time to think about what you discussed and to ask any questions that may come up as they think about the topics. During the deposition preparation, demystify the process by explaining the process in detail, including details such as who will be there an where everyone will sit. Provide insight as to the personality of the other attorneys if you know them. Let them know they can take bathroom breaks, etc. Discuss the likely areas of testimony, including any areas which may be difficult or unexpected. For example, witnesses often don t know that they may be asked about their criminal background, and may have some embarrassing offense in their past. Addressing this up front will put the client at ease. If the deposition will be videotaped, make sure the witness is aware of this and is prepared for the camera, both in terms of their appearance and their attitude. Review and discuss any documents which are likely to be discussed at the deposition. By now, you have likely heard the deposition rules for witnesses, but they are worth repeating: Listen to the question; Understand the question; Answer only the question asked; Shorter is better; Don t speculate Tell the truth; It s ok if you don t know the answer to a question; Don t guess. It is important for the witness to understand that they are not there to try to make the case or to protect the case. Sometimes, a desire to help hurts more than it helps. Discuss with the witness the goal of the deposition form the defense perspective. Protect the record: The witness is there to tell the truth under oath. Your job is to protect the witness and protect the record. Review the notice carefully and address any objections to time, location or scope, and any objections production of documents. Be familiar with the rules of the jurisdiction with regard to objections during the examination itself and how to handle them. If necessary, be prepared to take a break and seek the court s guidance as to any issues that cannot be resolved. Are there certain matters that you want to get into the record yourself, for some reason or another, even if your adversary does not inquire about that area? If so, have a plan of action whether it involves making sure your witness elaborates in response to an appropriate question or during cross-examination after your adversary completes the direct. Control your adversary: If you are prepared, you know why this deposition is taking place and what your adversary s likely goals might be and you will be prepared with your own set of goals and strategy. You may or may not know your adversary s deposition style or how they intend to organize the examination. But you can make sure that the witness is handled with respect and professionalism. Feel free to make sure the witness is comfortable and takes necessary breaks. While generally there is great leeway in the areas of inquiry, it is your responsibility to make sure that the questions do not stray into areas outside of the corporate designation or into territory that can be deemed harassment. Assess ahead of time your strategy for the deposition. Will you rarely object and allow your witness story to flow. Or will you object often, and make your adversary craft each question carefully. 4

Control yourself: Sitting next to your client allows you to protect the client and also to experience the proceeding from the same perspective. While we often have cordial and fairly casual relationships with opposing counsel, at deposition it is important to maintain the sense of dignity and decorum that the proceedings call for. After all, this is a battle in an adversarial process. Your client wants to know you take this seriously. And being too comfortable and relaxed might result in giving the other side an advantage if you miss something. On the other hand, no matter how difficult the relationship is between you and your adversary, or how tense the deposition gets, keep your cool, be civil, be professional. And finally, just as it is important to LISTEN while you are taking a deposition, it is just as important to LISTEN when you are defending a deposition. 5