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Selecting and using expert witnesses in bad faith cases.



You must be selective in choosing experts in bad faith cases. If experts are not credible or they overextend o·ver·ex·tend  
tr.v. o·ver·ex·tend·ed, o·ver·ex·tend·ing, o·ver·ex·tends
1. To expand or disperse beyond a safe or reasonable limit: overextended their defenses.

2.
 themselves, your case will not succeed.

Consider using knowledgeable lay witnesses as well as conventional experts. Lay witnesses who arc well versed Versed® Midazolam Pharmacology A preoperative sedative  in insurance industry practices or who have themselves been victims of ruthless insurance company tactics can be believable be·liev·a·ble  
adj.
Capable of eliciting belief or trust. See Synonyms at plausible.



be·lieva·bil
 witnesses. As in any litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.

When a person begins a civil lawsuit, the person enters into a process called litigation.
, witnesses must not only be knowledgeable but credible. Jurors know when a witness is "stretching" the envelope of truth.

This article explores some different types of experts and lay witnesses who may successfully reach the jury in these cases and explains how and when to use them.

Types of Experts

Adjusters. These are obvious experts to call. You should have little problem presenting these witnesses as experts - whether they are former adjusters now turned consultants or people presently adjusting for major insurance companies.

If you use respected retired adjusters or current adjusters who had or have substantial responsibilities with major companies, defense lawyers will be hard pressed to challenge their testimony. This is because the defendant will likely use in-house or retired adjuster consultants to counter the testimony of your experts.

Once chosen and properly qualified, these experts will be able to educate jurors on a variety of topics including

* the insurance carrier's duty to defend its client;

* the extent of this duty;

* the dollar value of the claim (property, casualty, health, or accident);

* the application of the law of the jurisdiction (including insurance regulations, the Uniform Deceptive Trade Practices Act, and case law) to the facts of the case; and

* the quality and quantity of conduct - whether intentional, willful Intentional; not accidental; voluntary; designed.

There is no precise definition of the term willful because its meaning largely depends on the context in which it appears.
, wanton Grossly careless or negligent; reckless; malicious.

The term wanton implies a reckless disregard for the consequences of one's behavior. A wanton act is one done in heedless disregard for the life, limbs, health, safety, reputation, or property rights of
, malicious, or in reckless disregard reckless disregard n. grossly negligent without concern for danger to others. Actually reckless disregard is redundant since reckless means there is a disregard for safety. (See: reckless)  of the rights of the insured or a third-party claimant CLAIMANT. In the courts of admiralty, when the suit is in rem, the cause is entitled in the Dame of the libellant against the thing libelled, as A B v. Ten cases of calico and it preserves that title through the whole progress of the suit.  - in the claims-handling process.

Economists. The ultimate goal in most of this litigation is to convince the jury (and the judge) that an excess verdict or punitive damages Monetary compensation awarded to an injured party that goes beyond that which is necessary to compensate the individual for losses and that is intended to punish the wrongdoer.  award or both ought to be considered to punish, take away the "ill-gotten" gain, set an example, or deter future similar conduct. An economist - preferably one who has kept abreast of insurance practices and accounting procedures - may be helpful in explaining why a company should be punished and made an example of to deter future similar conduct.

Since economists are specialized in the field of "crunching numbers," they can explain the forces of the insurance marketplace and how and why companies "pad" the bottom fine. You can use an economist to educate jurors or to calculate gross profit as a result of bad faith conduct.

An economist can explain insurance industry terms such as "reserves," "incurred losses," "book losses," and "rates of return." Using diagrams and flow charts, economists can explain how premium dollars are broken down and siphoned off by carriers. Economic schemes to avoid painting a clear picture of company profitability also should be explored.

Economists can set the stage for the amount of a punitive damages award. They can perform a pivotal role in convincing a jury how a company is profiting from its reprehensible rep·re·hen·si·ble  
adj.
Deserving rebuke or censure; blameworthy. See Synonyms at blameworthy.



[Middle English, from Old French, from Late Latin repreh
 conduct.

Economists can be used to calculate gross profit as a result of bad faith conduct. Many of these cases involve a carrier's cheating, double-dipping, low-balling, double-dealing, or fraud. This conduct can consist of shaving small amounts off every claim - or refusing to pay or timely pay claims involving health, disability, and credit life or mortgage insurance, based on hypertechnical constructions of policy language, misrepresentation misrepresentation

In law, any false or misleading expression of fact, usually with the intent to deceive or defraud. It most commonly occurs in insurance and real-estate contracts. False advertising may also constitute misrepresentation.
, or outright fraud.

Economists are in the best position to quantify dollars saved by a carrier's willful conduct over any incremental Additional or increased growth, bulk, quantity, number, or value; enlarged.

Incremental cost is additional or increased cost of an item or service apart from its actual cost.
 period of time. Once the cconomist calculates the carrier's savings, research can be conducted to determine the carrier's internal rates of investment so that present-day calculations can be made to show gross profits or savings realized.

Professors. Professors at local colleges or universities can be crucial players in exposing the exploits of carriers. Law professors, especially those with a background in insurance law, are particularly well suited to help expose a carrier's past bad faith cases.

Many insurance law professors have compiled data on topics such as the profitability of insurance carriers; the need for more effective regulatory measures; and the failure of past regulatory measures by state insurance commissioners due to ill-equipped, understaffed, and underfunded un·der·fund  
tr.v. un·der·fund·ed, un·der·fund·ing, un·der·funds
To provide insufficient funding for.

underfunded adjinfradotado (económicamente) 
 offices. These professors can also present a historical perspective on how the insurance industry in this country operates in an ineffectually in·ef·fec·tu·al  
adj.
1.
a. Insufficient to produce a desired effect: an ineffectual effort to block the legislation.

b.
 regulated environment.

Attorneys. Attorneys who practice insurance law can explain technical issues involving the application of a state insurance regulatory scheme or the application of the Uniform Deceptive Trade Practices Act to the conduct in question. The attorney experienced or trained in this area can explain how the facts of a case apply to the law in your jurisdiction to clarify difficult points.

Attorneys who have handled similar claims or dealt with the same carriers in litigation are well qualified to address the issues of prior bad conduct, custom and practice, absence of mistake or inadvertence The absence of attention or care; the failure of an individual to carefully and prudently observe the progress of a court proceeding that might have an effect upon his or her rights.  or both in insurance claim practices, intentional conduct, or similarity of facts vis-a-vis your case with the carrier's prior conduct.

Retaining a defense lawyer who has represented insurance companies for the bulk of his or her professional life is effective.

This attorney will be credible in explaining the schemes used by companies and how these practices in the marketplace vary from the printed manuals, procedures, or guidelines carriers issue. The attorney can explain "dummy Sham; make-believe; pretended; imitation. Person who serves in place of another, or who serves until the proper person is named or available to take his place (e.g., dummy corporate directors; dummy owners of real estate). " files or document destruction programs designed to hide the truth or "create" the "truth" a carrier wants conveyed.

Insurance commissioners. Former or current state commissioners can be used as experts. Unfortunately, many of them obtained their training and experience working for insurance companies, so caution is in order.

Depending on your state's regulatory environment, an insurance commissioner could be one of the most knowledgeable experts in identifying abusive practices. Since commissioners oversee state insurance regulatory schemes (and in varying degrees are enforcers of a state's deceptive trade practices statute), no one would appear to be in a better position to relate facts and figures concerning industry practices.

An insurance commissioner should be qualified to discuss -

* theory of insurance risk spreading);

* adjusting practices in the industry (in general);

* adjusting practices of different carriers; and

* how different companies manipulate claims experience to affect rates.

Lay witnesses. A lay witness is someone who by knowledge, training, experience, education, or otherwise can help the jury understand the conduct of a particular carrier.(1) Used car salespeople sales·peo·ple  
pl.n.
Persons who are employed to sell merchandise in a store or in a designated territory.
, builders, mechanics, auto body repair specialists, fire cause and origin specialists, psychologists, media specialists, and insurance sales agents are but a few potential lay witness experts.

Ben Hogan Noun 1. Ben Hogan - United States golfer who won many major golf tournaments (1912-1997)
Hogan, William Benjamin Hogan
, of Birmingham, Alabama Birmingham (pronounced [ˈbɝmɪŋˌhæm]) is the largest city in the U.S. state of Alabama and is the county seat of Jefferson County. , some time ago, used a local English teacher as a lay witness expert in an insurance fraud case. In Phillips v. United American Insurance Co., a $1.8 million verdict was rendered because of the carrier's fraudulent failure to pay a $264 medical claim.(2)

A brochure the carrier used to explain the coverages available was clearly different from the actual policy. The teacher diagrammed sentence by sentence the brochure's promises of coverage and concluded that the policy language had a different meaning than the corresponding language in the brochure. On cross-examination, defense counsel, not realizing how damaging this would be, asked the teacher to diagram the corresponding sentence in the policy, and the witness's point was easily made.

Use of an English teacher was innovative and points out that one need not have an expert with a 10-page resume and a Ph.D. to reach a jury. An English teacher is also far less expensive than most experts and may be known by some jurors. How much more credibility could a conventional expert have than an English teacher who taught jurors' children?

In a recent case tried to a jury in West Virginia West Virginia, E central state of the United States. It is bordered by Pennsylvania and Maryland (N), Virginia (E and S), and Kentucky and, across the Ohio R., Ohio (W). Facts and Figures


Area, 24,181 sq mi (62,629 sq km). Pop.
, a used car salesman testified in the compensatory phase of a bifurcated bi·fur·cate  
v. bi·fur·cat·ed, bi·fur·cat·ing, bi·fur·cates

v.tr.
To divide into two parts or branches.

v.intr.
To separate into two parts or branches; fork.

adj.
 insurance bad faith '''

Insurance bad faith refers to a claim that an insured person has against an insurance company for bad acts. Under the law of nearly every U.S. jurisdiction, Insurance companies owe a duty of good faith in dealing with the persons they insure.
 case. He explained why Allstate's conduct in deducting reconditioning and cleanup fees in total vehicle loss cases was improper and would result in paying far less than fair value to the insured.(3)

Before trial, the court had excluded the plaintiff's right to use its only insurance expert due to a claim that the insurance adjuster had confidential work product concerning Allstate's activities. The West Virginia Supreme Court of Appeals overturned the trial court. Nevertheless, the trial court later continued to exclude the expert on other grounds. This left the plaintiff with only a used car salesman to explain why Allstate's claims adjusting practices were improper.

A survey of prospective jurors conducted before trial indicated that the most believable witness for either party would be the used car salesman. (The expert witness pool had included chief executives for six major insurance companies proffered by Allstate.) The jury returned a compensatory damages A sum of money awarded in a civil action by a court to indemnify a person for the particular loss, detriment, or injury suffered as a result of the unlawful conduct of another.  award in the exact amount that the used car salesman indicated was fair based on his training, experience, and knowledge of West Virginia insurance laws.

Strategies for Punitive Damages

Cases

In fight of recent U.S. Supreme Court decisions concerning the viability of punitive damages awards, parameters on these awards are being set. Awards in all jurisdictions will now be subject to retrospective review retrospective review,
a posttreatment assessment of services on a case-by-case or aggregate basis after the services have been performed.
. Therefore, greater use of experts is suggested to ensure keeping punitive damages awards on appeal.

The key to preserving these awards is "due process." Each state's review of a trial court's punitive damages award must now involve substantive standards designed to comport See COM port.  with minimum constitutional due process rights.

For example, in Pacific Mutual Life Insurance Co. v. Haslip, the U.S. Supreme Court looked at Alabama's method of reviewing punitive damages awards and confirmed that since Alabama conscientiously reviewed 12 different substantive areas in passing on a punitive damages award, it had comported with minimal due process.(4)

In TXO TXO Taxi Orange (Austrian reality TV show)  Production Corp. v. Alliance Resources Corp., the U.S. Supreme Court found that West Virginia's substantive standards also comported with sufficient due process standards.(5)

If your state has not yet developed standards, adopt West Virginia's when selecting experts and develop your factual presentation to conform with the standards. This will ensure retaining the punitive damages award.

In most bad faith cases, the club held over the carrier is the threat of punitive damages. With heightened scrutiny now being applied to these awards, it becomes crucial to meet as many of the standards as possible by presenting proper expert opinion testimony based on the facts of your case.

For example, an economist could render expert testimony Testimony about a scientific, technical, or professional issue given by a person qualified to testify because of familiarity with the subject or special training in the field.  concerning these substantive standards:

* the defendant's financial position;

* the attempts to conceal the wrong by using "voodoo" accounting; and

* the profitability of the conduct and arguably ar·gu·a·ble  
adj.
1. Open to argument: an arguable question, still unresolved.

2. That can be argued plausibly; defensible in argument: three arguable points of law.
 the defendant's awareness of the conduct by reference to internal accounting practices.

In-house adjusters, plaintiffs counsel, and claimants in other legal actions could review the facts and documents compiled during discovery and testify about experiences with the company in question. These witnesses could render expert opinion testimony on the following standards:

* the duration of the conduct claimed to constitute bad faith;

* the defendant's awareness of the conduct;

* the attempts to conceal the bad conduct;

* the frequency of like conduct; and

* the reprehensibility rep·re·hen·si·ble  
adj.
Deserving rebuke or censure; blameworthy. See Synonyms at blameworthy.



[Middle English, from Old French, from Late Latin repreh
 of the conduct in light of a comparison of in-house claims procedures and manuals, in-house oral communications, and what was actually done to the insureds to "pad" company profits.

An attorney or professor could discuss these standards:

* the reprehensibility of the conduct in relation to insurance regulatory schemes; deceptive trade practices acts in other states; and the rendering of expert testimony as to whether the conduct is willful, wanton, intentional, malicious, or reckless in disregard of the insured's or the claimant's legal rights;

* the desirability of removing the profit motive by awarding punitive damages; and

* the specific use of attorneys to show how litigation costs prevent or preclude many bad faith cases from being filed, thereby resulting in insureds being deprived of the benefit of their insurance contracts because of the financial position and strength of the insurance industry.

Insurance commissioners could relate specific facts to back up the following standards:

* whether the carrier has been criminally sanctioned for past conduct;

* whether, and how many times, the company has been subjected to other civil damages awards or administrative sanctions under a state deceptive trade practices act; and

* the harm done to the litigant litigant n. any party to a lawsuit. This means plaintiff, defendant, petitioner, respondent, cross-complainant, and cross-defendant, but not a witness or attorney.


LITIGANT. One engaged in a suit; one fond of litigation.
 as well as the likelihood of future harm to insureds similarly situated similarly situated adj. with the same problems and circumstances, referring to the people represented by a plaintiff in a "class action," brought for the benefit of the party filing the suit as well as all those "similarly situated.  as a result of the defendant's conduct if it is allowed to continue as before.

Use of these experts pressures the defendant to negate ne·gate  
tr.v. ne·gat·ed, ne·gat·ing, ne·gates
1. To make ineffective or invalid; nullify.

2. To rule out; deny. See Synonyms at deny.

3.
 their testimony through its own experts. Unfortunately for the carrier, use of these experts may force it to discuss substantive standards a second time, thereby reinforcing the insurance carrier's bad conduct before the jury.

It does not appear that the U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), applied the rules governing expert testimony established by the Federal Rules of Evidence to the admission of scientific evidence at trials conducted in federal courts. , Inc. will affect most insurance bad faith cases.(6) Daubert merely held that a court is to review the methodology and principles on which experts base their opinions, not the results of these opinions themselves.(7)

Practice Pointers

How to uncover defense experts. In most cases, including insurance bad faith ligation ligation /li·ga·tion/ (li-ga´shun) the application of a ligature.

tubal ligation  sterilization of the female by constricting, severing, or crushing the uterine tubes.
, you will encounter the discovery battle of experts. A typical scenario goes like this: The plaintiff submits the complaint, interrogatories Written questions submitted to a party from his or her adversary to ascertain answers that are prepared in writing and signed under oath and that have relevance to the issues in a lawsuit. , request for admissions, and request for production. Among other things, a request is made to discover the names and addresses of all possible defense experts, a designation of the facts known and opinions held by these experts, and a short statement of the underlying basis of the opinions to which they are expected to testify.(8)

Of course, the typical response from the defendant goes like this: "Please be advised that discovery is still ongoing. It's too early in discovery to obtain, much less identify, the names of any experts we propose to use." Or "We don't know Don't know (DK, DKed)

"Don't know the trade." A Street expression used whenever one party lacks knowledge of a trade or receives conflicting instructions from the other party.
 who you will use as experts or what they will say, so until we receive this information we can't respond." Although I would advocate using the Ride 26(b)(4) discovery tool early and often, here is another way to short-circuit this game.

To combat the "we don't know enough" excuse, serve with your complaint a set of interrogatories requesting the experts but include the names, addresses, and resumes of your experts along with a Rule 26(b)(4) disclosure. By doing this early, you serve three purposes:

* You tell the defendant that you are prepared;

* The defendant no longer has any excuse not to start searching for experts to combat yours; and

* The defendant knows exactly what your experts will testify to.

In line with what is suggested above, submit a Rule 30(b)(6) or similar deposition notice to the corporate defendant early. This rule requires the defendant to provide information the plaintiff can use to early advantage.

How to find the most knowledgeable deponent An individual who, under oath or affirmation, gives out-of-court testimony in a deposition. A deponent is someone who gives evidence or acts as a witness. The testimony of a deponent is written and carries the deponent's signature.


deponent n.
. In almost every case, you will be exposed to facts that require interpreting policy language and applying facts to the law of your jurisdiction. In trying to establish a violation of a deceptive trade practices act, you must show how conduct violated or deviated from the law. Why not demand in your 30(b)(6) deposition notice that the corporate defendant designate that person most knowledgeable of the facts of the case in relation to the law of the jurisdiction and then proceed to take that person's deposition?

Before starting the deposition, simply read the notice to the person (or people) the defendant sent to appear. Next, ask which person most closely matches the description in the notice. If anyone responds to this, proceed by asking appropriate questions delineating the carrier's conduct.

Ideally, the person who steps forward will also be used to speak for the company at trial. But typically, a defendant will seek outside experts to explain away its conduct. These experts may disagree with Verb 1. disagree with - not be very easily digestible; "Spicy food disagrees with some people"
hurt - give trouble or pain to; "This exercise will hurt your back"
 the in-house experts obtained under the "most knowledgeable" deponent notice.

Sometimes a deponent put forth by the defendant is not comfortable admitting that he or she is the "most knowledgeable" person in the company on a subject. After you read the notice, the person replies that neither he or she nor anyone else in the entire company is the most knowledgeable on the subject.

In this situation, the defendant at least looks awkward and probably ignorant about its own procedures. The 30(b)(6) deposition notice format requires the company to put forward one or more officers, directors, or managing agents who can expertly speak for the company. If the person put forward win not or cannot authoritatively do this, the company loses credibility when trying to justify its conduct toward the insured or claimant.

How to overcome the instruction not to answer routine questions. Discovery battles take place in these cases as well as in highly contested medical negligence and products liability cases. Defense lawyers sometimes tell crucial witnesses, including expert witnesses or highly placed company officials, not to answer certain questions because they know that a true answer will be harmful or prejudicial prej·u·di·cial  
adj.
1. Detrimental; injurious.

2. Causing or tending to preconceived judgment or convictions:
. Here is a technique to obviate ob·vi·ate  
tr.v. ob·vi·at·ed, ob·vi·at·ing, ob·vi·ates
To anticipate and dispose of effectively; render unnecessary. See Synonyms at prevent.
 this attempt to hide crucial information. You should set down for hearing, at the earliest practical time, a motion to prohibit defense counsel from instructing witnesses not to answer questions. Inform the court that according to according to
prep.
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

3.
 the rules a witness can be instructed not to answer questions only (1) when the lawyer instructing the witness is actually that party's lawyer, (2) when if answered the question could implicate im·pli·cate  
tr.v. im·pli·cat·ed, im·pli·cat·ing, im·pli·cates
1. To involve or connect intimately or incriminatingly: evidence that implicates others in the plot.

2.
 Fifth Amendment rights, or (3) when the question would impermissibly im·per·mis·si·ble  
adj.
Not permitted; not permissible: impermissible behavior.



im
 intrude intrude,
v to move a tooth apically.
 into the attorney-client relationship.

Usually judges are receptive to this motion, and they instruct defense counsel to avoid these tactics.

Overcoming Objections In many insurance bad faith cases, defense counsel will be highly protective of so-called experts who will testify that the defendant did no wrong, that all company policies and procedures Policies and Procedures are a set of documents that describe an organization's policies for operation and the procedures necessary to fulfill the policies. They are often initiated because of some external requirement, such as environmental compliance or other governmental  were followed, and that the company did not violate any provisions of the state Uniform Deceptive Trade Practices Act or any other statutory or common law.

In order to protect their experts, defense counsel will typically make the following objections during the deposition process:

* The question asked is beyond the scope of the knowledge of this expert;

* The expert witness is not authorized to speak for or on behalf of the company; and

* The question being asked calls for a legal conclusion and the witness is not a lawyer.

If defense counsel tries to protect an expert or lay witness by interposing these questions, you have hit pay dirt.

In the first instance, if you have used 30(b)(6) notice before deposition, you have already uncovered "those individuals most knowledgeable about the handling of the claim under consideration" and the pertinent facts and law. Since the company has designated, under that rule, the most knowledgeable person, counsel making this objection made the witness out to be a mere lay witness or an uninformed "expert" - a person who although being the most knowledgeable to speak for the company can't speak because he or she doesn't know the law or the facts.

A Catch-22 Tool

One approach to use when confronted with this conduct is to follow up with these questions:

* Do you adopt the statement of your legal counsel that the question is beyond your knowledge as an expert?

* You are not authorized to speak for the company, are you?

* Do you agree that you are not a lawyer or trained as a lawyer and therefore cannot and should not be making legal decisions or determinations for the company?

If the witness makes the appropriate responses, you will have neutralized neu·tral·ize  
tr.v. neu·tral·ized, neu·tral·iz·ing, neu·tral·iz·es
1. To make neutral.

2. To counterbalance or counteract the effect of; render ineffective.

3.
 the deposition. Why? In the typical case, you will be suing the adjuster who adjusted the claim. This person is being put forward as one of the people most knowledgeable about the handling of the claim in relation to the facts and the law.

The witness has stated competence to adjust the claim and perform all those tasks and then turns around and pleads incompetence to testify as to whether the job was performed in accordance with the law.

Beware of objections to the use of your expert. If you have chosen to use a former claims adjuster from a carrier you once sued, objections could be raised based on claims the expert must be disqualified dis·qual·i·fy  
tr.v. dis·qual·i·fied, dis·qual·i·fy·ing, dis·qual·i·fies
1.
a. To render unqualified or unfit.

b. To declare unqualified or ineligible.

2.
 due to prior relationship with the carrier and the possession of privileged and confidential information Noun 1. confidential information - an indication of potential opportunity; "he got a tip on the stock market"; "a good lead for a job"
steer, tip, wind, hint, lead
.

The typical objection is based on Rule 26 of the Rules of Civil Procedure for either federal or state courts. In part, this rule codifies the work product doctrine. It provides that information prepared in anticipation of litigation is privileged and that courts are to be especially on guard against disclosure of any of the other party's mental impressions and legal theories.

Counsel for insurance companies argue that since your expert worked in a sensitive position with the carrier either just before the claim was filed or actually during the claim handling, the adjuster is tainted taint  
v. taint·ed, taint·ing, taints

v.tr.
1. To affect with or as if with a disease.

2. To affect with decay or putrefaction; spoil. See Synonyms at contaminate.

3.
 by possessing the mental impressions, legal theories, and information prepared in anticipation of litigation in your case.

Some of the cases counsel will mention are Mayer v. Dell, Wang Laboratories Wang Laboratories - Computer manufacturer, known for their office automation products.

Quarterly sales $208M, profits $3M (Aug 1994).
 v. Toshiba Corp., Paul v Paul V, 1552–1621, pope (1605–21), a Roman named Camillo Borghese; successor of Leo XI. He was created cardinal (1596) by Clement VIII and was renowned for his knowledge of canon law. . Rawlings Sporting Goods Noun 1. sporting goods - sports equipment sold as a commodity
commodity, trade good, good - articles of commerce

sports equipment - equipment needed to participate in a particular sport
, and Marvin Lumber & Cedar Co. v. Norton Co.(9)

Not one involves a suit against an insurance company and for good reason. In most cases, if you use a former claims adjuster for a certain insurance company, that person does not have a law degree; the person is not privy One who has a direct, successive relationship to another individual; a coparticipant; one who has an interest in a matter; private.

Privy refers to a person in privity with another—that is, someone involved in a particular transaction that results in a union,
 to the mental impressions and legal theories of in-house or out-of-house legal counsel; and, in most cases, legal counsel never dealt directly with adjusters.

Only if the defendant can establish that your expert participated directly with legal counsel in preparing a defense to the case under consideration will the defendant have even a chance of excluding your expert.

The fact is that in almost every claim an adjuster does not set policy and procedure for a major insurance company. Policies and procedures are set at the home office by high-ranking employees who inform claims adjusters of any changes by memos.

You should be able to overcome claims that your expert should be disqualified. Have the expert present affidavits disclaiming participation in developing any legal strategies and defenses and/or disclaiming any knowledge of any mental impressions or conclusions of in-house or out-of-house legal counsel.

Use of expert witnesses in insurance bad faith litigation is not an exact science. Innovative use of expert and lay witnesses is crucial in obtaining a successful jury verdict and protecting and ensuring a punitive damages award. As in all major litigation, care should be taken not to extend an expert witness beyond his or her realm of expertise.

Insurance Section:

Good Alliance Against Bad Faith

ATLA's Insurance Section supports member attorneys who represent plaintiffs in insurance disputes. Members receive late-breaking news concerning recent developments on procedure, discovery, evidence, and pre-trial and trial techniques designed to enhance lawyering skills.

"Every trial lawyer is eventually going to come across an insurance matter that requires some expertise," said Frank Verderame, the 1994-95 section chair. "Our goal as a section is to provide a broad base of legal education about insurance laws for our members as well as to exchange case information."

Verderame said that the section is currently attempting to better coordinate efforts with ATLA's insurance litigation groups "to provide a more comprehensive support group for our members."

The four litigation groups - Bad Faith Insurance, ERISA/Employee Benefits, Fidelity Insurance An agreement whereby, for a designated sum of money, one party agrees to guarantee the loyalty and honesty of an agent, officer, or employee of an employer by promising to compensate the employer for losses incurred as a result of the disloyalty or dishonesty of such individuals. , and Property and Fire Loss - currently operate as networking centers, sharing information and expertise. The Insurance Section focuses more on educational programs.

According to Verderame, close cooperation between the litigation groups and the section would be both cost-effective and member friendly. It would also be "a natural outgrowth that reflects the maturation maturation /mat·u·ra·tion/ (mach-u-ra´shun)
1. the process of becoming mature.

2. attainment of emotional and intellectual maturity.

3.
 of the Insurance Section as a whole," Verderame said.

The section is currently working to develop a comprehensive member directory and a quarterly newsletter covering legal news and trends in insurance law.

Tom Henretta, the incoming chair for 1995-96, "will bring great continuity to the job," according to Verderame. "Tom will work with ATLA's Public Affairs Those public information, command information, and community relations activities directed toward both the external and internal publics with interest in the Department of Defense. Also called PA. See also command information; community relations; public information.  Department to make the Insurance Section even more accessible to members of Congress, health care subcommittees, the White House, and the major news organizations - all of whom have called on us to answer insurance-related questions in the past year," he said.

For more information on the programs and activities of the section or to become a member, contact Lynn Gewessler at (800) 424-2725 or (202) 965-3500, ext. 312. Annual dues are $25.

James C. Peterson practices with Hill, Peterson, Carper, Bee & Deitzler in Charleston, West Virginia Not to be confused with Charles Town, West Virginia.
Charleston is the capital of the U.S. state of West Virginia. It is located at the confluence of the Elk and Kanawha Rivers in Kanawha County. As of the 2000 census, it has a population of 53,421.
.

Notes

(1) See, e.g., FED. R. EVID. 701 (1987). (2) Phillips v. United Am. Ins. Co., CV-87-132-JSS (D. Ala. May 25, 1989); 32 ATLA ATLA Association of Trial Lawyers of America
ATLA American Theological Library Association
ATLA American Trial Lawyers Association
ATLA Air Transport Licensing Authority (Hong Kong)
ATLA Avatar: The Last Airbender
 L. REP. 252 (Aug. 1989). (3) McCormick v. Zakaib, 430 S.E.2d 316 (W Va. 1993). Accord Hawkins v. Allstate Ins. Co., 733 P.2d 1073 (Ariz. 1987), cert (Computer Emergency Response Team) A group of people in an organization who coordinate their response to breaches of security or other computer emergencies such as breakdowns and disasters. . denied, 108 S. Ct. 212 (1987). (4) Ill S. Ct. 1032 (1991). The Alabama standards were set forth in Green Oil Co. v. Hornsby, 539 So. 2d 218, 223-24 (Ala. 1989). (5) 113 S. Ct. 2711 (1993). The West Virginia standards were developed in Garnes v. Fleming Landfill, Inc., 413 S.E.2d 897, 899-900 (W. Va. 1991). (6) 113 S. Ct. 2786 (1993). (7) Id. at 2796. (8) See FED. R. CIV JUS AQUAEDUCTUS, CIV. law. The name of a servitude which Lives to the owner of land the right to bring down water through or from the land of another, either from its source or from any other place.
     2.
. P. 26(b)(4) or your state's similar discovery rule. (9) Mayer v. Dell, 139 F.R.D. 1, 3 (D.D.C. 1991); Wang Lab. v. Toshiba Corp., 762 F. Supp. 1246,1248 (E.D. Va. 1991); Paul v. Rawlings Sporting Goods, 123 F.R.D. 271, 278 (S.D. Ohio 1988); Marvin Lumber & Cedar Co. v. Norton Co., 113 F.R.D. 588, 591 (D. Minn. 1986).
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Title Annotation:Insurance Law
Author:Peterson, James C.
Publication:Trial
Date:Sep 1, 1995
Words:4293
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