PREPARATION FOR DEPOSITION
By: John J. Pappas
This is one of a series of articles originally published in Mealey's Litigation Report: Insurance Bad Faith, Vol. 23, #2, page 30 (May 29, 2009). © 2009
[Editor's Note: John J. Pappas is with the law firm of Butler Pappas Weihmuller Katz Craig LLP with offices in Tampa, Tallahassee, Miami, Mobile, and Charlotte. He is an experienced trial and appellate lawyer in the firm's Coverage and Extra-contractual Departments. This commentary, other than the quoted material, is the author's opinion; not his law firm's, and not Mealey's Publications'. Copyright © 2009 by the author. Responses are welcome.]
The deposition of the designated corporate representative of the insurance company defendant is, often, the tipping point of the case. Preparation is paramount to success. It isn't easy, and it isn't fun. The designated representative usually is a company executive with many responsibilities and pressures. But there is no substitute for time and effort. There is no other way. Here is a case in point.
"Hi, Kirk, this is John."
"Hey John, how you doing?"
"Fine, just fine. Is this a bad time?"
"No. No. No. I think I know why you're calling. We have a deposition coming up, don't we?"
"That's right, in a little more than three weeks."
"The 28th, correct?"
"That's exactly right. As I mentioned in my letter, we need you here in our office at least three full days beforehand to prepare."
"You know, I saw that and I thought - 'He must be joking.'"
"Unfortunately not, Kirk. If there's one thing we've learned about corporate representative depositions, it's the crucial importance of being prepared."
"Hmmmm. [sniffing]. Well. [clearing throat]. Let's see. The 28th is a Thursday, right?"
"Yes and your deposition is supposed to last two days."
"Two days?"
"Yes."
"And three days preparing?"
"Yes."
"I guess that means I need to travel Sunday afternoon."
"Yes. It does."
[long pause]. "I'll make plans."
"Great, Kirk, thanks. I know it's an inconvenience, but this is the kind of deposition where you'll be speaking for the company. We need to get you up-to-speed not just on the claim but also about corporate policies, procedures and history. Now, did you get the copy of the deposition notice we emailed you? It has a list of twenty-five areas you need to be prepared to talk about."
"Twenty-five you say?"
"Yes. Twenty-five. I guess you haven't had a chance to look at it."
"Yes, I mean, no. Actually I may have deleted it."
"Okay. I'll e-mail you another copy as soon as we hang up. Please have a close look to be sure you are the only person we need to produce to testify on behalf of the company."
"Well, John, I can tell you now, I am the only one you are getting. It's been decided that I'm stuck with this ... I mean that it's my responsibility. It's my baby."
"Okay. All the more reason why you need to read it and be sure you are at least familiar on all twenty-five areas."
"No problem."
"Also, I'll see that you get copies of the transcripts and exhibits from the fifteen deposition already taken in this case. I going to ask you to read them before you come down. We don't want to spend three days of prep time just watching you read."
"Fifteen you say? How long are they?"
"Some are longer than others. We'll have them on your desk tomorrow. I suggest you take notes as you read – mainly times, dates, and names."
[long pause] "Really."
"As soon as you have your itinerary, let me know. We'll pick you up at the airport and do dinner Sunday night."
"Okay. Well, I Iook forward to seeing you, anyway."
"Same here, Kirk. Have a great week."
TWO WEEKS LATER
"Hey Kirk, how you doing?"
"Hey John. I think I know why you're calling. We have a deposition coming up,
don't we?"
[long pause] "In ten days."
"Ten days?"
"And you're flying into town this Sunday so we can prepare."
"Right ... Sunday."
"I haven't gotten your itinerary, though. Have you made reservations?"
"Uh. Not yet."
"Have you read the transcripts and exhibits we sent you?"
"Boy that sure was a lot of stuff, John."
"I know. How much have you gotten through?"
"Well, I didn't want to prepare too early or I'd forget by the time I get deposed."
"Understood. That's why I suggested you take notes of times, dates, and names. How much have you read?"
"Not much."
"Kirk, I gotta tell ya, you really need to start preparing."
"Yeah, I know. Okay. I'll get back with you about my flight schedule."
"Okay. Look forward to seeing you."
[long pause]. "Uh, John. How much money do they want?"
"The last demand was for $9 million."
"How much did we pay them?"
"Nothing. The claim was denied - failure to cooperate, insurance fraud, and no coverage in any event."
"Oh, yeah, that's right. Okay. Have a great day, John."
"You too."
FRIDAY AFTERNOON
"Kirk?"
"Yeah, Hey John."
"When are you arriving?"
"Uh, uh, well I couldn't get anything reasonable out Sunday. So I'm going to have to fly down Monday morning. Let's see. It's supposed to get in at 11:30 a.m."
"What airline – want us to pick you up?"
"No, no, I'll get a rental car."
"Sure?"
"Yeah. I'm sure."
"Okay. So we should see you at about noon on Monday?"
"Sure thing."
"Kirk?"
"Yeah?"
"Have you read the transcripts and exhibits?"
"I have looked at a couple of them John. But, every time I get started, the phone rings or someone interrupts me. I'm sorry."
"Kirk, no need to apologize to me. It's just you really do need to read this stuff."
"Yeah, I know. I will."
"Also, don't forget about the twenty-five areas in the deposition notice – do you have familiarity with all of those?"
"Yeah, no problem."
"Remember, Kirk, this is not a deposition of you – it's a deposition of the company. The company is obligated to produce a witness or witnesses with sufficient knowledge to answer questions in those areas."
"Yeah, I know. No problem, John. I'm the guy. It's my baby."
"Okay then, I'll see you on Monday."
[long pause] "John, have there been any recent settlement negotiations?"
"No."
"Oh, okay."
"See you Monday."
"See you Monday, Kirk."
MONDAY, 1:45 PM
"Hi Kirk."
"Hi, John, sorry but the plane was delayed."
"That's okay, we are all set up in a conference room."
"Wow, is this all our case? The table is covered with file boxes, and they're stacked halfway up the wall."
"Yes, it is. Look, we can do this many different ways – but I suggest since we have limited time to prepare, that I briefly give you the history of this claim and litigation. You can take notes and ask questions. Then I can leave you alone the rest of the day so you can finish reading whatever materials you have not read yet. Then tomorrow and Wednesday we can spend most of the time 'role-playing' and give you feedback off the videotape machine."
"This is going to be videotaped?"
"Yes, Kirk. The notice says it's a videotaped deposition."
"Oh, okay. Do I have to wear a coat and tie?"
"Preferably. You will be sitting next to me at trial with a coat a tie."
"Oh."
"Have you made notes yet."
"No."
"Okay. Here's a pad and pen. Anything you want to try to remember simply reference a date, time, name, or transcript page and line – simply write it down. You can use it during the deposition. Remember it's not a memory test."
"I can bring these notes to the deposition?"
"Yes you can. These notes will be mainly for reference purposes for your convenience."
"Oh, great, okay."
"Kirk, what have you done to prepare for this deposition?"
"Well I read some of the deposition transcripts. Kind of skimmed them a little bit. They were kind of boring."
"Yes. It's not John Grisham. But you understand that it is important that you – as the corporate representative – know whatever these witnesses have testified to . Let me give you an example. Pretend you are now under oath as the corporate representative of the insurance company. I am the insured's attorney: Mr. James, you agree that if at any time the insurance company concludes there is coverage, and my client did not breach the insurance contract, that the insurance company would pay whatever it deems it owes my client, even if we're in litigation?"
"Yes."
"Who at the insurance company oversees this litigation?"
"I do."
"So you would be the person with the most knowledge about the status of the claim and the litigation?"
"Yes, I would."
"Then Mr. James, tell me how does the deposition testimony of Mrs. Pike change the insurance company's evaluation of this claim?"
"Mrs. Pike?"
"Yes, Mrs. Pike?"
"Who is Mrs. Pike?"
[end of role playing]. "That's my point."
"Okay, I need to know who has been deposed, what they have said – everyone?"
"Yes."
"Wow, that's a lot of reading."
"It's about 2,000 pages not counting the exhibits and pleadings and interrogatory answers. Kirk, why don't I give you an overview of the case. Then you can take notes and ask any questions you may have."
[40 minutes later].
"Any questions, Kirk?"
[shifting nervously]. "No."
"Look Kirk, maybe it would be helpful if I just sit with you and share with you maybe the ten most important questions you will be asked. That way you can keep repeating them to yourself as you read through the materials and make notes."
"No. No. I think I should start reading this stuff –."
"Okay. But as you do, please keep in mind the following fundamental questions you can expect to be asked. One, why did you deny the claim? Two, what documents or information did you request from the insured but were not given? Three, what were all the concealment of material facts by the insured? Fourth, what misrepresentations did the insured make? Fifth, what exclusions do you rely upon and why? Kirk, if you are prepared to answers these questions you should do fine."
"Thanks, John. I just need some quiet alone time to read this stuff."
"Okay. Buzz me if you need anything."
"Sure."
4:45 P.M.
"How you doing, Kirk?"
"Just fine. A little hungry."
"We have dinner reservations for 6:00. Is that okay?"
"Perfect. I'll go to the hotel, check in, freshen up and meet you at the restaurant at 6:00 pm."
"Excellent."
AFTER DINNER
"I'll see you tomorrow around 9:00."
"Yeah, that's fine."
TUESDAY MORNING, 10:50
[When I arrived in the conference room, Kirk was staring out the window, talking on his cell phone].
"Sorry, John. An attorney in Louisiana threatened us with a bad faith lawsuit if we don't advance another $3 million by 5:00 pm today."
"I understand. How did you sleep last night?"
"So, so. I never sleep well on the road."
"Neither do I. How is your prep coming along?"
"Okay."
"How many depositions have you read?"
"Well I scanned most of them but I only actually read about half of one."
"Okay. Let me leave you alone. But do me a favor. Shut off your cell phone. Unless you really want to have a bad day on Thursday, you really need to get through this."
"I know. I know. I will."
"I'm going to leave you alone. We'll order sandwiches in for lunch."
"That's fine."
AFTER LUNCH
"I'll be back, at about 3:30 to start asking you questions – role play – okay?"
"3:30?"
"Yeah."
"But I won't be done reading."
"I know but it will help focus you."
"Okay."
"See you then."
3:34 P.M.
"Ready for your some cross-examination by an obnoxious Plaintiff's attorney?"
"Yeah. Sure. Go ahead."
"Okay. State your name, sir."
"Kirk T. James."
"Who is your employer?"
"Who is my employer?"
"Yes."
"Ah, ah, XYZ Insurance Company?"
"Do you receive a W-2 form for tax purposes naming XYZ Insurance Company as your employer?"
"I think so. I'm not sure."
"Does the W-2 form identify XYZ Insurance Company as your employer?"
"Well, you know. Now that you ask, I can't tell you technically who is my actually employer – John."
"Okay, Kirk, lets stop role-playing for a moment. Before the deposition begins on Thursday you need to find out the full name of your actual employer."
"Sure."
"Now lets continue with the role playing."
"Okay."
"Why did XYZ deny the claim?"
"Why did XYZ deny the claim?"
"Yes, sir. Why did XYZ deny the claim?"
"Because there's no coverage."
"Any other reason?"
"No."
"Why was there no coverage?"
"John, here is where I need to get more prepared."
"Yep, okay, Kirk. I'll leave you alone. Do you want to get together for dinner?"
"John, if it's alright with you, I would rather relax at the hotel and try to read more of these transcripts."
"See you at 9:00 tomorrow morning, then."
WEDNESDAY MORNING 9:45
"Ready for some role-playing?"
"John, I still have not read everything – I feel uncomfortable trying to answer questions before I've read everything –"
"Sure. I understand. You've done this before. You know what to expect. The deposition is tomorrow and it is important that you are well rested and comfortable. Why don't I order sandwiches again for lunch and I can start asking you questions after lunch."
"That's fine, John. Maybe I should have started reading this stuff sooner."
"That's okay. We'll get through this together."
LUNCH
"How's it going?"
"It's going slowly."
"Okay, are you ready for some tough questions."
"I think so."
"Okay, let's get enthusiastic. Tomorrow is the day you get to tell your side of the story."
"Yeah, I know. But there's so much there."
"Yes there is. Why did you deny this claim?"
"Because there was no coverage."
"Any other reason?"
"Yeah, because the insured failed to cooperate and committed insurance fraud."
"What was the fraud?"
"The insured submitted an inflated insurance claim."
"You disagreed with the amount of the claim?"
"Yes."
"Everytime you disagree with the amount of a claim do you accuse your insured of committing insurance fraud?"
"No."
"Okay. Why then did you accuse my client of insurance fraud?"
"John – John –help me. That's a good question."
"Kirk, yes it is. Have you read the 23-page denial letter, marked as Exhibit 1?"
"Not since we sent it out about two years ago."
"You really need to read it and have it in front of your while you testify."
"Yeah, you're right John. I think I'm focused now. I think I just need alone time to read everything."
"Are you sure? The role-playing is important so that you know what to expect and you're not surprised during the deposition."
"Yeah, I know. And if we had more time, I would agree. But now I think I should just get back to the hotel room, relax and read as much as I can and get a good night's sleep – if I can."
"Okay, the deposition is scheduled to begin 9:00 am and remember it is video."
"Okay, I'll be there by 8:30 am."
"I'll see you then. Is there anything else we can do for you?"
"No. I'm fine, thanks."
THE DEPOSITION
[third question]. "Who is your employer?"
[giggling]. "I've always thought I worked for XYZ Insurance Company but I don't recall who is named on my W-2 form as my employer, but I'll find out and I'll let you know during our next recess."
"Okay, that's fine. But the fact remains that you don't know who employs you."
"No. Not for sure."
"Okay, why did XYZ deny my client's insurance claim?
"Why did XYZ deny your client's claim?"
"Yes. That is the question."
"Why did XYZ deny your client's claim?"
"Yes, sir. That is why this lawsuit is about and that is the question."
"Well, XYZ denied the claim because there was no coverage."
"Any other reason?"
"Not that I can recall."
"Did XYZ rely upon any exclusions to deny coverage?"
"Yes, I think so."
"Which one?"
"I don't recall."
"Well, which exclusion or exclusions does XYZ Insurance Company rely upon and believe are applicable to my client's claim?"
"I don't recall."
HOUR LATER AT THE FIRST BREAK
"How are you holding up, Kirk?"
"I'm a little nervous. I hate being deposed. It's pure torture. Maybe we can get a reasonable demand right now and get it over with."
[bleakly]. "I'll ask."