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Raising your right hand: preparing for the adjuster's deposition.


Brace yourself for a big "gulp" moment. Today's mail--or perhaps the sheriff--has delivered a subpoena for you to appear for a deposition in five weeks. You'll be grilled about a claim you handled four years ago. You thought it was closed--over and done with--but as Yogi Berra said, "It ain't over till it's over."

An adjuster may have to give a deposition for various reasons. Either he or his company may be a defendant in a bad-faith claim. Someone could be suing the insurer or the TPA over the way a claim was handled, or there could be a dispute between a reinsurer and a ceding company. There are a host of other scenarios: a primary insurance carrier and an excess carrier are fighting, or maybe the adjuster is a defendant. In other cases, the adjuster's deposition may be part of a lawyer's fishing expedition.

To prepare for the deposition, the adjuster should work closely with defense counsel, the lawyer representing the adjuster and "defending" the deposition. Make sure that attorneys get adjusters all of the information and materials the latter needs to review for any deposition. Even if the adjuster has seen the material before, lawyers can note depositions months or years after the claim was closed. No adjuster has a photographic memory in such cases, so the claim handler must review materials.

The adjuster also needs to make sure that counsel supplies these materials to the claim person for review quickly and as far before the actual deposition date as possible. The importance of this grows with the volume of material to be reviewed. If the adjuster must review thousands of pages of material, then additional lead time should be allotted for an unhurried assessment. This is particularly vital because adjusters often juggle the onerous task of deposition preparation with their "regular" jobs.

Adequate deposition preparation is crucial. Consider this the homework, and the deposition itself as the final exam. Actually, the deposition is more like an oral exam and often about as much fun as a tooth extraction. The more time you spend becoming thoroughly familiar with the relevant materials--relevant as defined by defense counsel--the better the adjuster will fare during the deposition itself.

Key Prep Factors

Include logistical factors in your deposition preparation. These may appear mundane but can be essential to help you get in the right frame of mind as you enter the conference room to be interrogated under oath. How familiar are you with the area where the deposition will be taken? Is it in or near your hometown or in a remote location with which you are unfamiliar? Make sure you know roughly how long it will take to drive to the location from your home or from the hotel, and allow extra time. Is there ample parking? Does it fill up early? Is it a parking deck, assigned or limited? Factor in the possible need to circle around for parking. Is the deposition location downtown, in a court reporter's office, or in an attorney's office? Find out and make a "dry run," if at all possible.

These points may seem tedious, but you do not want to enter the deposition in a frenzied state of mind, sweating over being late or finding a parking space. You want to show up to the deposition feeling cool, calm, and collected. The odds of successfully doing this rise when you allow ample time for the commute and thoroughly scout out the physical layout so as to minimize transportation snafus. Further, you do not want to start out by being on the defensive by apologizing to opposing counsel and explaining why you are late.

Ask Your Attorney

Here are some questions for the adjuster's counsel before the deposition:

* Who will take the deposition? It may or may not be the attorney who signed the subpoena or the deposition notice. A senior partner from the opposing firm or an associate may be conducting the deposition. Find out whom.

* How would you characterize his deposition style? Is it confrontational and abrasive, low-key, or inquisitorial? Has your attorney had many prior dealings with opposing counsel? If so, then are they on good or contentious terms? This can impact the tone of the deposition and help prepare you mentally.

* How long do you think the testimony will take? Take whatever answer counsel provides with a grain of salt. A deposition might take less or more time than your counsel forecasts. It is best to expect a long day so you can be pleasantly surprised if it ends early. Do not schedule other commitments later that day. You do not want to be distracted by the fear of missing another appointment, a return flight, and so forth. That is when the lawyer questioning you can trip you up and cause you to make mistakes. Settle in for the long haul. Maintain the air of someone who feels he has all the time in the world.

* What is the main thing the opposition is trying to get out of this deposition? What is the best-case scenario for the opposing side? How would it know that it hit "pay dirt"? What is it that they are after, or are they taking the adjuster's deposition more as a fishing expedition?

* What are the "hot spots" or touchy areas where I should tread cautiously? Every case has strengths and weaknesses.

What are the soft spots in the case where the adjuster's answers are extremely critical? Have counsel provide you with feedback here.

* What would be a successful outcome at the end of this deposition? What is a best-case scenario for us? What does success look like? You have a better chance of doing a good job if you have a clear idea as to what will help your case.

Can we meet a day or two before the deposition to prepare? Insist on this. Some defense attorneys may wave you off, suggesting that you get together for breakfast on the morning of the deposition or huddle a few minutes before the court reporter arrives. Diplomatically but firmly insist on meeting the day before to go over key planning aspects of the deposition.

Depositions are Maalox moments and may be about as much fun as a root canal. Like root canals, they are occasionally necessary. Although there is no functional equivalent of "deposition Novocain," these preparation tips may render the adjuster's testimony experience as pain-flee as possible.

During the Deposition

You've done your prep work and are ready to be sworn in by the court reporter. It's "final exam" day for your deposition. If your attorney is doing a good job, then he should explain basic ground rules to help you survive and thrive during the deposition. Below is some sound advice for adjusters or just about anyone who is giving a deposition.

* Answer only the question asked.

* If you don't know an answer, then simply say, "I don't know."

* Don't guess.

* Don't confuse memory recorded with memory refreshed.

* Never volunteer information.

* Try to limit answers to "yes," "no," or "I don't know."

* Listen to the question carefully, only answering if you are certain that you understood the question.

* Take your time, as an answer given instantly after the question and one that is answered 30 seconds later looks the same on a court reporter's transcript.

* Don't make a speech.

* Stop speaking when your attorney objects, and then listen closely to his objection.


Kevin Quinley is an insurance claim expert and consultant. You can reach him at or at www.
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Copyright 2009 Gale, Cengage Learning. All rights reserved.

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Title Annotation:Claim Management
Author:Quinley, Kevin
Date:May 1, 2009
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