30 Apr Ever Been in a Courtroom?
Generally, this is a place I suggest you avoid. There may be circumstances where your presence in a courtroom is necessary, such as in a civil matter, but I feel certain you would probably rather be elsewhere.
Regarding E&O litigation, given the choice between a courtroom or a root canal, you might prefer the root canal. While no two E&O trials are the same, some similarities are worth detailing.
Presuming that your file/your client was the one that resulted in the E&O matter, it is likely that you will be one of the individuals actively involved. In fact, you may be the main person! With few exceptions, the entire file is now discoverable, meaning both attorneys (the one bringing the E&O litigation against your agency and the one defending your agency) will have access to the information. The “information” includes the notes, any emails and other forms of documentation, phone calls that took place or were alleged to have taken place, proposals, exposure analysis checklists, etc. This is one reason you never want the client to have better documentation than you do.
Fast forward to one of the initial events in an E&O litigated matter – the deposition. Per Wikipedia, a deposition “involves the taking of sworn, out-of-court oral testimony of a witness that may be reduced to a written transcript for later use in court.” Unlike a courtroom, no judge is present, but similar to a courtroom, there is an expectation that you will tell the truth. You will be asked – “Do you solemnly swear to tell the truth, the whole truth and nothing but the truth?” There is certainly the possibility that, if the E&O matter goes to trial, the plaintiff’s attorney (representing the client) will ask you the same question in a courtroom that they asked you in a deposition. This is to see if you answer the question the same. A great quote from Mark Twain – “if you tell the truth, you don’t have to remember anything.” Said another way – “if you tell the truth, you don’t have to remember what you said.” It is important to note that your attorney will do their best to prepare you for what you will be facing and what you will probably be asked. Even with that, being deposed can be a stressful experience.
At this point, you may think, no big deal, you can handle this. In my E&O insurance career, I have been deposed many times and have had to testify in court in many of the expert witness cases I was involved in or in other corporate matters. The plaintiff attorneys will come across as very nice, and they typically are. But they also have to do their job; some can be ruthless. As stated, you can count on them asking you the same questions they asked in the deposition. For your sake, I hope there is not a difference. One issue that always irritated me was how they frame the questions with double negatives or ask the same question they did five minutes prior. The goal seems to be to trick you, and some are very good at it. Oh, by the way, they are good at reading body language.
Is this a situation you are looking forward to? I doubt it. So, given a choice of doing the right thing (such as quality documentation) when you have been dealing with the client or winging it in hopes that your file will not be involved in the E&O matter, which one would you choose?
That root canal looks pretty good at this point.