As an attorney, I love information, and I enjoy getting my hands on an adjuster’s claim notes; I am privy to the initial reserve, internal thoughts, and other pertinent information that reveals the carrier’s position on my client’s file. On the contrary, I am often sitting in a deposition of a public adjuster where their claim notes or file embarrass or reveal an opinion that a jury may view much differently than intended.


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A comment to my earlier post, The Importance of Examinations Under Oath, asked me to differentiate between a deposition and an examination under oath. A deposition is a discovery tool used during litigation to take the sworn testimony of a witness. In Colorado, depositions are governed by Colorado Rule of Civil Procedure 30 that states that a party to a lawsuit may take the testimony of any person, including a party, by deposition upon oral examination without leave of court except and that party’s attendance at the deposition may be compelled by subpoena as provided in Colorado Rule of Civil Procedure 45. A party may also serve upon the person to be deposed a subpoena duces tecum that designates materials to be produced at the deposition. In an Examination Under Oath, sworn testimony is also taken, but only of the policyholders or people over whom the policyholders exert control.


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In Paskoff v. Avatar Property & Casualty Insurance Company,1 a matter handled by my Merlin Law Group colleague, Shaun Marker, Avatar’s CEO visited the insured property and conversed with Ms. Paskoff about her loss. In subsequent litigation, Mr. Marker naturally wished to depose Avatar’s CEO regarding the CEO’s property visit and interactions with Ms. Paskoff. Mr. Marker filed a motion to compel the deposition of the CEO.

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I spent yesterday in beautiful Des Moines, Iowa, watching and aiding Chip Merlin in a deposition of an insurance agent in an agent negligence case. On a cloudless day that had highs in the low 70’s, I was stuck in a third floor office suite for a nine or ten hour deposition marathon. But the lesson I learned more than made up for missing out on the great weather. Chip has mentioned before that establishing duty is the key to agent negligence cases, and he showed that gathering and using advertisements distributed by an agent or agency can go a long way to do just that.


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Today’s deposition of Professor William Spelman starts a series of depositions in the Texas slab cases involving TWIA. Several weeks ago, policyholder attorneys, including myself, met in Galveston to organize a series of depositions and decide upon the work assignments for these cases. This will be the first of many depositions and discovery attempts by policyholder attorneys to gain additional recovery for those individuals who suffered the most devastation caused by Hurricane Ike.


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