In cases involving allegations of bad faith and claims for extra-contractual damages, a plaintiff must convince the fact-finder that there is a valid reason for awarding such damages.
Extra-contractual litigation involves several potential witnesses, including the claims professional and the corporate representative. Who you choose as the corporate representative can considerably impact the case, and it is a decision that should be made only after careful thought and analysis. Often, cases rise and fall based solely on this testimony.
Keep in mind that the company is bound to the corporate representative’s testimony in an extra-contractual case. Thus, having an uninformed representative will doom the defense when there are too many “I don’t know’s” or “I don’t recall”-type of answers. Those areas will be fodder for the plaintiff’s arguments that the company is incompetent, uncaring, or willfully ignorant, increasing the value and likelihood of a verdict in the plaintiff’s favor.
In addition to the binding effect of the testimony, the representative is the face of the company, and, essentially, the pillar of your case.
The Right Stuff
What are the considerations in choosing the person with “the right stuff” to be your pillar and face that binds the company? Here are a few key considerations.
First, be sure to know and research your venue. Does your corporate representative need to be someone who is a reflection of the potential jury pool? Or is it enough that she knows her stuff and is likeable and credible on the stand?
Second, how high up should that representative be from the claims representative responsible for the claim when it became a possible extra-contractual claim? Do you want one designated person called upon for most, if not every, extra-contractual corporate representative deposition? Can the representative be undermined by prior testimony in another case?
Third, determine if your chosen representative is willing to take the time to be properly prepared for the deposition. It may take hours, days, or even weeks, depending on the case. It may require study, research, and mock depositions. Is that representative too overworked to be able to commit the time necessary to be familiar with all of the areas that she will be called upon for testimony?
Fourth, it’s important to determine if the corporate representative or representatives (remember you can designate different representatives on different topics) are the types of people who can take the heat of a deposition and not lose their composure. Is the person willing to listen to and heed the advice of the attorney preparing her for the deposition, or is the witness the type who likes to be “helpful,” thinking that it will assist her in the deposition? Conversely, is the chosen representative able to be involved in her own preparation? The more the representative personally knows or can research about opposing counsel and the venue, as well as the claim, the better choice she will be.
Lastly, it’s important to determine if the chosen representative can interpret and understand the case law in the venue in terms of what is considered bad faith and what is not. Has the chosen representative ever dealt with the important issues in the venue before?
Preparing the Corporate Representative
Once you have selected the person with the right stuff, the role of the attorney becomes paramount in preparing that corporate representative. It is imperative that the attorney obtains a specific notice that the corporate representative can prepare for and point to at the deposition as the only topics she is prepared to testify to. Request that topics for the deposition be amended if they are not specific.
Any questions that are broad or vague invite the possibility that every claim or rule in the claims manual will be fair game, and a corporate representative can never be fully prepared to answer questions of that scope. Always object to broad, vague questions, and get a ruling on them prior to the deposition if plaintiff’s counsel will not amend the areas for the deposition to be more specific. Don’t just assume the questions will be objectionable and wait until the deposition to object—that may place the corporate representative in the uncomfortable position of having to answer questions that they may not be prepared for.
Once the topics are specific enough, the attorney must begin preparing the corporate representative by educating her on both case law and the issues that will affect the outcome of the case. The attorney should summarize, provide key points, and get intelligence on opposing counsel from other attorneys in other cases involving plaintiff’s counsel. The attorney must fully research decisions and appeals that the plaintiff’s attorney was involved in that are similar to the case at hand, and obtain other depositions, if possible, by the opposing counsel in those cases. It can be invaluable for the deponent to see the plaintiff’s counsel’s style, and even possible questions for which to prepare.
One of the most helpful preparation techniques is for the attorney to put together the toughest set of deposition questions possible for a mock deposition. Not only should the attorney be prepared to fire those questions at the proposed corporate representative, but also the attorney should have the sessions videotaped. The body language of the deponent can be just as telling as what is said at a deposition, and the fact finder will absolutely take that into consideration. This type of preparation also gives the witness confidence, and it can take away some of the fear factor on deposition day.