An Overview: Secrets of the Subrogation Attorney - Part 2

If you had a chance to watch the popular #AskAPro webinar series episode, The Secrets of the Subrogation Attorney, you know we doled out some good information. So much so, that we still had more to say! Welcome to part II.

To view part I of this series, click here, and to view part II, click here.
In this second, bonus session, we tackled all things settlements and trials! Shareholder and Subrogation Group chair Ted Traut moderated this engaging Q&A-style webinar. Panelists included attorneys Michael Chapman, Nathan Duvelius, and Tiffani Williams. This team brings together a former claims adjuster, corporate witness, and defense attorney to give you a unique perspective on the handling of subrogation claims. 

Making the right decision to settle a case or take it to trial can be a daunting task. Our team at Weltman helps you navigate that process and remove some of the anxiety associated with testifying. Let’s get to it!

How do you decide whether to go to trial or to settle a case?

It all depends on what you want, what it’s worth, and what is the likelihood of success. The decision isn’t based only on your case’s strengths and weaknesses but also on the cost of going to trial. There are many costs above the court fees, such as the monetary and time cost to the company having an adjuster testify live at trial. In addition, juries are comprised of potential customers, not all cases are best to present in front of a jury. We’ll want to consider how a trial may affect your reputation. 

Trials are inherently unpredictable. Sometimes witnesses don’t show up or they change their story. Even with a great case, a judge or jury can decide against you. If there’s an opportunity to do a consent judgment on a payment plan for the full balance against the pro se defendant, that’s almost always preferable to going into trial.

At the end of the day, if your attorney is advocating to settle, it’s because it’s the best outcome, not necessarily that they don’t believe in the case. They’ll also help you determine a bottom-line amount to ensure the entire process is successful.

Is an expert really needed for a trial?

The short answer is sometimes. Expert testimony is best utilized when you need the witness to provide opinions or professional conclusions. An expert may not be needed if your case requires the testimony of lay witnesses. Those witnesses can provide testimony on their personal knowledge. Some claims require expert testimony such as fire and water losses and product liability cases. The expert witness may need to testify to damages or causation. The purpose of the expert witness is to assist the judge or jury in understanding complex, technical, or scientific issues. In addition, in bodily injury claims, expert testimony is required to establish the reasonableness and the relatedness of the treatments to the injury. 

There are times when identifying who qualifies as an “expert” is questioned. Your attorney can best guide you, for example, there are instances when your attorney may establish an adjuster as an expert. Referencing the first question, remember there are costs associated with bringing in experts to go to trial.

What is the difference between the judge and the jury at trial?

There are two types of trials: bench trial and jury trial. In a bench trial, the judge decides the law and the facts of the case. In a jury trial, the judge still decides the law, but a group of lay people decide the case facts.

In a jury trial, people sometimes consider things that aren’t relevant to the case. For example, they may view the insurance company as a deep pocket and want to rule in favor of the claimant. Whether true or not, it’s just human nature. Jury trials are also going to be more formal, where a bench trial can be a bit more relaxed.  

When presenting a case, the jury needs a picture painted — it’s a show. This requires more details, more preparation and the presentation of the witness from appearance to relatability is on trial. It's also, you guessed it; more money!

A subrogation professional may find a bench trial easier because the witness can focus on talking to the judge who already understands the law. Convincing a jury that a witness knows what they’re talking about is a more complex process.

What steps are involved in the life and conclusion of a lawsuit?

The process starts with the loss. In part I, we discussed how important it is to preserve evidence. Next, you’ll identify the responsible entity. You want to talk to people about whether you have causation, proof of damages, and overall support for your case.

Ask yourself what you need to explain to someone in order to convince them you are entitled to a recovery. This will help you find the potential holes in your case, and you can follow up to fill them in. 

If you need to file suit, you’ll have your initial complaint which puts the defendant on notice. When the defendant responds, you’re in active litigation, and different states have specific laws and phases. Making the decision about going to trial will happen at some point in the process. Most of the time, resolving the case with a mutual agreement will be better than going to trial.

What is the role of a witness in a subrogation case?

Witnesses usually testify from personal knowledge because they were there or you have experts who can render opinions based on skill and experience. Sometimes the role of the witnesses is to bring in the documents or testify that those documents are indeed accurate or legitimate. Depending on your case, witnesses could be an adjuster, custodian of records, or corporate. Corporate witnesses are answering on behalf of their corporations and, as such, need some extra preparation. 

When we get a trial or deposition notice, we like to try and identify (and ideally secure) our witnesses as soon as possible even though we may not need them for a few months. We want the witness to really understand what we’re asking and to practice their answers.

How should a claims adjuster prepare to give a testimony?

You’ll want the adjuster to review the claim notes, especially if they’re acting as a custodian of records or corporate witness because they’ll be testifying. Often the testifying adjuster wasn’t the one who actually adjusted the file so paying close attention to it is crucial.

Whether testifying at a deposition or a trial, if you’re the adjuster, you’ll want to keep a few things in mind. First, stay calm. Don’t let the attorney ruffle your feathers or get you upset. It’s a strategy to get you to say more than you normally would or come across as combative.

In a deposition, remember there’s only you, the other attorney, and the court reporter. Take a few seconds to answer; the transcript won’t reflect that time. In a jury trial, on the other hand, you don’t want to sit every five minutes thinking before answering because it could paint you in a bad light to the jurors. Regardless, the key is to answer only what the question asks.

From the moment you start speaking, it’s presumed you heard and understood the question and that you're answering truthfully. If any of those three things do not line up, make sure you ask questions, including asking that a question be repeated or rephrased. You should never guess an answer. Ideally, the question and answer have been practiced to avoid any surprises.

What documents from the claims file are admissible at trial?

Most documents created and generated by the actual insurance company are admissible. Your estimate of damages, payment logs, and business records are usually admissible. In Michigan, however, police reports are not admissible because the narrative isn’t admissible. Your attorney will guide you through your state’s laws. 

There are many exceptions — and even some weirdness — when it comes to a collection file if you’re a debt buyer, but that’s for another webinar.

What are some helpful tips for testifying at a hearing, deposition, and/or trial?

The biggest tip, as we’ve already mentioned, is being prepared. The opposing counsel may try to get a rise out of you and throw you off your game. Make sure you fully understand the question, and if you don’t, ask for it to be repeated or rephrased. If you’re at a bench trial, know that the judge can, and probably will, start asking you questions. If the defendant doesn’t have an attorney, sometimes the judge (even though they’re not supposed to) will advocate for the defendant by asking some tough, pointed questions. 

Making eye contact with the jury and speaking conversationally can be helpful.

What are the benefits and disadvantages of virtual vs. in-person considerations when testifying?

There's no better way to convey a message with credibility and sincerity than to be there live and in person. You just don't get the same feeling from watching somebody on video. Also, jurors almost always fall asleep when they’re watching a video deposition. 
If you have additional questions about our subrogation solutions, contact Ted, Tiffani, Michael, and/or Nathan at any time.

These blogs are not a solicitation for business, and they are not intended to constitute legal advice on specific matters, create an attorney-client relationship or be legally binding in any way.

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Ted M. Traut


Michael J. Chapman


Tiffani N. Palmer


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