In Part 1 of this series, we addressed whether a deposition of the adjuster was appropriate in the first place. In Part 2 and Part 3, we addressed preparing the adjuster for the deposition or the preparation of the attorney to take the deposition of the adjuster. This fourth and final part of this series will address the deposition itself. It will cover the appearance of the adjuster, as well as objections and privileges that can be asserted at the deposition. It will also address what steps can be taken to minimize the privileges that are available at the deposition.
Assuming the requisite preparation has taken place, the next step in the deposition process is the actual deposition itself. If the adjuster has been properly prepared, most of the hard work has been done, and the deposition itself should not be strenuous. However, there still are a number of steps that must be taken by the adjuster during the deposition to ensure that the testimony will be received as favorably as possible.
Appearance of the Adjuster
Most depositions in large cases are videotaped. There are several reasons. First, most of our society is extremely visual. Studies show that juries pay more attention to videotaped depositions and retain more of the information than in depositions that are read from the witness stand. Second, the fact that the deposition is being videotaped puts additional pressure on the deponent because he or she knows that not only will the jury hear the deponent's answers, but they will also be able to see how the deponent answered the questions. Therefore, in the videotaped depositions, the adjusters must be prepared in not only the substance of their answers but also how they answer the questions. They must be prepared on how they should dress and appear on the videotape. (Wear no article of clothing or jewelry, including piercings, that might be offensive to anyone on the jury, including the most conservative little old lady or most liberal 18-year-old young man.)
The adjuster must also be prepared to concentrate on his or her body language. In interviewing jurors, the most common comments are not on what the witnesses said but on their body language. Were their arms crossed? Did their eyes go back and forth? Did they slump in the chair? Did their face get red with the hard questions? Did they perspire?
The appearance of the adjuster cannot be overstated. He or she must be professional looking and know how to respond to questions in an open manner. He or she must not be argumentative and should always be polite in answering questions. If the adjuster is rude and overbearing in the deposition, the jury will assume that the adjuster was rude and overbearing in the manner in which he or she dealt with the insured. On the other hand, if the adjuster is thoughtful and methodical in the way he or she responds to the questions, the jury will assume that the adjuster was thoughtful and methodical in the manner in which he or she responded to the claim at issue.
Defense counsel must be on his or her toes when defending the adjuster's deposition, particularly on the issue of objections to the questions. Many of the questions referred to above that are quite useful to the insured are quite objectionable. For example, if the adjuster is asked whether he or she agrees that an insurance company has a duty to put the interests of the insured above its own interests, the question is improper. Generally, the issue of the existence of a duty is a question of law for the court and is an improper question for the adjuster. (By the way, the answer to the question is that, under Texas law, there is no such duty on the part of the insurance company.) Questions regarding duty and the existence of duty are easy to spot and identify, and it is easy to assert the appropriate objection.
On the other end of the spectrum, there are some questions involving pure issues of fact that may not be subject to any objection. For example, does the insurer have policies in place to ensure the prompt investigation of claims? The more difficult area is the one involving mixed questions of fact and law. Was there a reasonable basis for failing to pay the claim or delay in payment of the claim? This question clearly involves questions of fact but also involves questions of law as well.
Nearly every notice of deposition of an adjuster will come with a duces tecum or prior request for production of documents. No doubt, counsel will assert objections to some and seek to withhold them. The extent of the privilege will turn on each case and in large part depend upon if the case is a third-party liability case or is a first-party case. Generally, in a third-party liability case, the scope of privilege is narrower. In a third-party liability case, such as Stowers, the insured is entitled to its attorneys' files and generally entitled to the claims files for the adjuster handling the liability portion of the case. Typically, little, if any, can be withheld.
One of the most common items withheld in third-party liability claims, such as Stowers, is the reserve information. Currently, there are cases going both ways on the discoverability of the reserve information. In withholding information and presenting a witness for deposition, the attorney needs to be careful that the testimony remains consistent with the withheld documents. There have been several cases where the adjuster was presented for deposition while certain documents were withheld. The adjuster was asked very specific questions and answered them in a specific fashion under the mistaken belief that the documents would remain privileged. A motion to compel was filed, and the court ordered the documents to be produced. The information in the documents directly related to what the adjuster had sworn to under oath. At the trial of the case, the credibility of the adjuster was totally demolished when it was shown that he testified one way when the documents that had not been produced directly contradicted his testimony.
Another area of critical importance is email. Generally, there will be a request for relevant emails early in the case. Care should be taken when suit is filed or notice of a claim is given to see that all relevant emails are preserved for litigation. See Trevino v. Ortega, 969 S.W.2d 950 (Tex. 1998). Once a party has notice of litigation or threatened litigation, a duty exists under Texas law to see that all relevant evidence is preserved.
No doubt, the issue of privileges will arise during the deposition. As with the issue of documents, the issue of privilege will in large part depend on if the case is a third-party liability case or a first-party liability case. If the adjuster is the liability adjuster in a third-party case, there will be few privileges until the time of anticipated litigation. If the case is a first-party case, then the anticipation of litigation may have occurred very early in the case if there were threats of litigation. When representing insureds, this is one reason to hold off threatening litigation. Once the threat has been made, the privilege attaches. The threat of litigation is probably not going to change the manner in which the claim is handled and should be withheld as long as possible if the insured wants to push the anticipation of litigation date back as far as possible.
Once the deposition of the adjuster has been completed, the outcome of the case in large part has been determined. If the adjuster was prepared and performed admirably, the insurer has taken a large step in prevailing in the litigation. On the other hand, if the adjuster performed poorly, the insured has positioned itself to obtain a favorable settlement in the case.
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