Preparing for Your First Deposition

You’ve just gotten off the phone with local counsel and have been told that the plaintiff’s lawyer wants to take your deposition. Normally, you are safely tucked away behind your desk, shielded by your computer screen and phone, with reminders of your life outside of claims displayed all around you. But now your mind is racing at the thought of someone looking for every possible angle to criticize your file handling and scrutinizing your every move. On top of that, you know that your boss will have a very close eye on the situation. Your deposition preparation meeting with counsel is not until the day before the deposition, but you’ve got questions and you need answers now.

Fortunately, there are some basic pointers to be aware of that will put your mind at ease. Above all else, preparation is key. Knowing your file and spending time getting ready is the medicine that will alleviate any anxiety you may have. Below are some basic questions that claims professionals should address before sitting down for their first deposition.

What questions should I expect? It is likely that you are being deposed as either a fact witness regarding your own decisions on a coverage issue or as a corporate representative with knowledge of policies and procedures, or some other subject matter requested by opposing counsel.

If you are being questioned about your handling of a claim, you will need to know the claim file inside and out. You should be able to justify every decision reflected in the file in a way that is consistent with the policy terms.

If you have been identified as a corporate representative that has knowledge of a particular subject—known as a “30(b)(6) witness” in the Federal Rules of Civil Procedure—be sure you are familiar with the subjects for which you have been identified. If you are not, advise counsel immediately. If it turns out that you are still the best person for the job, ask to meet with counsel well in advance of the deposition so that you can prepare for the subjects for which you have been identified.

What is the purpose of the deposition? There will be no judge or jury at the deposition (despite some very misguided television shows). Therefore, you will not win the case at the deposition. However, you could lose it with any number of missteps, so it is very important to know the goal of the plaintiff’s lawyer. He may simply want to establish the validity of coverage or understand the information on which a decision was made. He may be looking for evidence of a bad faith claim and the absence of a debatable reason for a denial. He may also be facing a motion for summary judgment and want to create some factual dispute in order to overcome that motion. You need to know what he is trying to accomplish and how it fits into the overall strategy of the defense of your case.

What if I don’t know the answer to a question? There are only four really good responses to a question in a deposition: “yes,” “no,” “I don’t understand the question,” and “I don’t know.” A deposition is not a quiz. It is not your job to know the answer to everything that could be asked. Your opponent may be trying to establish what you don’t know as much as what you do know. You will get yourself in trouble if you start answering definitively about things that you have only a hunch or to which you think you might know the answer. You should know what you know, but it is equally important to know what you don’t know. Be cautious, however. “I don’t know,” should never be used as an excuse for lack of preparation.

How much should I say? Answering questions in a deposition is a unique experience. You are not allowed to ask questions in response (other than asking that a question be clarified), but you are bound to answer truthfully and completely. However, that does not mean you should volunteer information. Be very careful to answer only the questions that you are asked and to answer as directly and succinctly as possible. Ask counsel to conduct a mock examination so that you can get a feel for the question-and-answer exchange. The exchange can be awkward and uncomfortable at times. But remember, it is not a conversation. Even if opposing counsel is cordial and friendly, stay on your guard. Listen carefully, and answer thoughtfully and with purpose.

What do I wear? For those of you lucky enough to work remotely, this is always a question. You want to present a professional appearance without overdoing it. In addition to your testimony, opposing counsel will be evaluating your potential impression on a jury. Dress conservatively but competently. Leave the Rolex and the Armani suit at home. Something close to job interview attire is most appropriate.

What do I bring? The short answer is nothing, unless you are told otherwise. Anything you bring that is remotely related to the claim is subject to questions. Leave your cell phone somewhere in the car or outside the deposition room. With increased remote access to email and files, the potential to be asked about electronic documents and communications is great. You may be asked by your lawyer to bring your claims file or certain documents. Be sure to find out whether you need originals or copies and whether any documents need to be certified.  

Jim Pattillo is a partner with Norman Wood Kendrick & Turner, an Alabama-based law firm. He has been a CLM Member since 2010 and can be reached at jpattillo@nwkt.com, www.nwkt.com.