Throughout a deposition or cross examination, it is very important to bear in mind the purpose of cross-examination. It is not about coyness or trickery. It is about bringing out the truth. Period.

Below is a portion of a deposition transcript in a bad faith case involving the termination of disability payments to a grammar school teacher with disabling neck injuries.

The alleged basis for the termination of benefits was that the insurer was informed of an IME of their insured conducted at the request of the California State Teachers Retirement System. The IME report stated that the examining physician was "unable to find any objective evidence of disability which could explain plaintiff's subjective presentation." The IME also concluded that the plaintiff's condition was not of such severity as to preclude her from performing as a teacher. Based on this information, the company terminated disability payments.

In some situations, deponents will not be available at trial. Even with those who will be, you may choose to read from their deposition rather than to examine them in person. Therefore it is important that key depositions be thorough.

Once you have established the role, responsibilities, training and experience of the claim manager, you should test his or her knowledge concerning applicable claims handling standards within the insurance industry. Such questions do not "call for a legal conclusion," but merely establish knowledge, awareness, custom and industry standards. These standards would include the usual prohibitions against unreasonable delay and underpayment, as well as the duty to avoid misrepresenting coverage or conducting inadequate or one-sided investigations. Nailing down the witness's awareness of basic rules of construction that must be applied to insurance policies in making claim decisions is also important. This helps to establish that if there are ambiguities in the policy, the company must interpret these in favor of the policyholder, etc. Proving this awareness is important because of the requirements for obtaining punitive damages in most states.

In addition, it is important to elicit testimony concerning the existence designation and whereabouts of claims manuals and other training materials; the settlement authority of all adjusters and managers involved; the chain of command on the particular claim; the internal procedures utilized for documenting files and information regarding whether any of the adjusters were ever criticized or reprimanded for their activities in the handling of the file, etc.

Beyond this basic background information, it is important to scrutinize the claims and/or underwriting files and to question the witness concerning his or her awareness of the specific facts relating to the claim. For example, in the course of the investigation did the claim manager ever contact the plaintiff's treating physicians, soils expert, contractors or other relevant experts? Did the claim manager direct anyone else to do so? How can you investigate something without talking to the witnesses? Isn't it true that the plaintiff provided a release of hospital and medical information? Did the adjuster ask key people key questions?

It is also important to carefully dissect the precise type of insurer misconduct involved. Bear in mind that there is no exhaustive laundry list of the acts which constitute bad faith. It is unreasonable conduct by an insurer directed against a policyholder. Don't stop simply with the conclusion that an investigation was slipshod. Why was it inadequate. Whom did the insurer listen to and whom did they ignore? What information did they gather and how did they interpret that information or misinterpret it? Did they look only at information supporting the denial of the benefit or did they give equal or greater consideration to information supporting payment?

The order of questions is also of strategic importance. Before attempting to question the claims manager about MRI's, you need to first establish what the witness knows about this subject. You might start by asking, "Isn't it true that your background and knowledge are insufficient to permit you to draw any conclusions at all from an MRI?" The witness will promptly deny this, insisting that he or she is thoroughly capable of reading an MRI report. Be grateful for this admission. You can now proceed to show how the MRI clearly supports the insured's claim and that he, as an expert in the claims business, experienced in evaluating MRI reports, knew it from the first moment he set eyes on the report:

Q: The MRI discloses disc degeneration at C-2/C-3 through C-6, and C-7. Isn't that correct?

Q: Are these abnormal readings or not?

Q: There was a four to five millimeter disc protrusion at C-3/4 and C-4/5. Isn't that correct?

Q: According to the MRI all of these protrusions had a mass effect on the spinal cord. Isn't that correct?

Q: Are those normal findings?

Q: Is there a problem posed by a disc that is impinging on the spinal cord? What does that cause?

Q: Are the protrusions and other medical findings of the MRI consistent or inconsistent with the allegations of pain made by your insured in 1992, 1993, 1994 and 1995.

Q: When you saw this MRI report did you think that it was inaccurate? Did you think that it was a fake report of some kind?

Q: Did you think that it was just coincidental that the MRI reflected this kind of damage at precisely the sites of complaints that your insured had been reporting?

Did you think it was a coincidence that the MRI found these physical findings to be consistent with the diagnoses of every treating physician that cared for your insured?

Q: Yet you refused to reinstate disability payments even after you had seen these reports? Isn't that true?

Q: Did anyone at the insurance company ever reprimand you or criticize you for failing to reinstate these benefits.

Q: Now the plaintiff is no longer an insured with your company, correct? Why is that sir? (Because she is no longer an active employee with the school district).

Q: So the company took the position that the MRI - if it reflected a disability at all - disclosed one that had occurred after the plaintiff was no longer an insured of. Isn't that correct? . . .

These are just a few very basic examples. The point is that it is important to set questions up properly for both deposition and cross examination and to use good common sense examining the witness.

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