Latest / The Art of Adjusting® Podcast / Episode #89: Deposition Survival For Adjusters

Transcript

Episode #89: Deposition Survival For Adjusters · The Art of Adjusting® Podcast

• 0:06
  William Auten: Hello, I'm Bill Auten of Auten Claims Management.
• 0:09
  Chantal Roberts: I'm Chantal Roberts of CMR Consulting, and welcome to the Art of Adjusting Podcast.
• 0:14
  William Auten: Today we're going to talk about life as an insurance adjuster from the perspective of property, auto, liability, or workers' compensation adjusters.
• 0:22
  William Auten: Our goal is to bring interesting topics in the world of claims adjusting to people who are working as an adjuster now and to people who are considering a career as a claims adjuster.
• 0:31
  William Auten: Hey Chantel, how are you?
• 0:33
  Chantal Roberts: I'm doing great.
• 0:33
  Chantal Roberts: Thanks.
• 0:34
  Chantal Roberts: How are you?
• 0:35
  William Auten: Pretty good.
• 0:35
  William Auten: Pretty good.
• 0:36
  William Auten: Looks like we have a guest today.
• 0:38
  Chantal Roberts: We do.
• 0:38
  Chantal Roberts: We have Bill Kanasky, and he is the chief growth officer, which I love, of courtroom sciences.
• 0:47
  Chantal Roberts: Uh Bill's work sits in the this sounded really good at the time, but now we're in a deposition category.
• 0:56
  Chantal Roberts: And that is exactly why adjusters should be listening to this particular podcast.
• 1:04
  Chantal Roberts: And what I love about today's conversation is A, I have two bills that are both bald.
• 1:11
  Chantal Roberts: And I'm not going to be able to tell you the apart.
• 1:13
  Chantal Roberts: And y'all are both really good looking.
• 1:15
  Chantal Roberts: So I'm just going to go with it.
• 1:17
  Chantal Roberts: I'm just going to, it's like, I'm not arguing with anything.
• 1:19
  Speaker: This is what an introduction.
• 1:23
  Chantal Roberts: You know, and what I and what I also love is that we don't necessarily as adjusters necessarily think of ourselves as witnesses, but we absolutely are, just like we are the representatives of the carrier.
• 1:38
  Chantal Roberts: And we're uh witnesses in our own deposition when we're defending our files.
• 1:44
  Chantal Roberts: We're witnesses in the litigation if we happen to have to go to the litigation and report back as to what's going on.
• 1:51
  Chantal Roberts: And, you know, kind of we've got to document that file as if it is going to be read by somebody who was not there.
• 2:04
  Chantal Roberts: And sometimes that happens.
• 2:05
  Chantal Roberts: I've had to do that as an expert witness myself.
• 2:08
  Chantal Roberts: So we're going to be talking a lot today.
• 2:11
  Chantal Roberts: And and um the really good looking Bill, so you figure out which one that is, will be talking about how adjusters can show up really strong and credible witnesses uh for the company and for themselves.
• 2:25
  Chantal Roberts: So, Bill, welcome.
• 2:28
  Chantal Roberts: And you just figure out which one I'm talking about.
• 2:30
  Chantal Roberts: I just this is what I love.
• 2:31
  Chantal Roberts: This is gonna be great.
• 2:33
  Speaker: Well, thank you very much.
• 2:34
  Speaker: Thank you very much for having me.
• 2:35
  Speaker: And you've been on my podcast twice.
• 2:37
  Chantal Roberts: Yes.
• 2:38
  Speaker: Fantastic uh episodes.
• 2:40
  Speaker: So uh thank you for uh for coming on and I'm I'm happy to be here.
• 2:44
  Chantal Roberts: Yeah, so we're gonna start off from your perspective.
• 2:49
  Chantal Roberts: Where do professionals, especially like the non-lawyers, like adjusters, most often misunderstand what it is to be a quote witness in quote?
• 3:02
  Speaker: It it's the same misunderstanding any witness has, actually, is um people show up to deposition and have this assumption that I am supposed to tell this questioner every single thing I know.
• 3:19
  Speaker: And oh, it gets worse.
• 3:21
  Speaker: Uh and then and then once I do that, this person asking me questions is going to understand my perspective, and this whole problem's going away.
• 3:32
  Speaker: That's that's that's the major faulty assumption every witness has, including adjusters, by the way, uh, worst witnesses ever, attorneys.
• 3:42
  Speaker: They'll openly admit that.
• 3:44
  Chantal Roberts: You think that they would be really good at this since they study depositions.
• 3:47
  Speaker: No, they're terrible.
• 3:48
  Speaker: And and and they know they're terrible, they'll admit they're terrible.
• 3:52
  Speaker: But no, that that's the kind of the fundamental flaw going in here.
• 3:56
  Speaker: And that's a so I'm a clinical neuropsychologist, and this is why I do this.
• 4:00
  Speaker: And you know, most witness problems uh that I see just come from a faulty, a faulty foundation, right?
• 4:08
  Speaker: And we're talking, you know, cognitive and emotional uh issues, and the cognitive problem here is I'm okay.
• 4:14
  Speaker: So this is an advers, deposition is adversarial.
• 4:18
  Speaker: Okay.
• 4:19
  Speaker: So how does our brain handle adversarial situations in society?
• 4:25
  Speaker: What do we do?
• 4:26
  Speaker: We shut down, we talk it out.
• 4:28
  Speaker: We talk it out.
• 4:30
  Chantal Roberts: I shut down, although some people would say that claims is adversarial to begin with.
• 4:37
  Chantal Roberts: I mean, because nobody likes to talk to the claims adjuster, it means that something's gone wrong.
• 4:42
  Speaker: Yeah, it's it's it's not a good thing, right?
• 4:44
  Speaker: Right?
• 4:45
  Speaker: If you're talking to a claims adjuster or an attorney, it's it's generally not good news.
• 4:51
  Speaker: True, right?
• 4:52
  Speaker: True.
• 4:53
  William Auten: So so I view a deposition as more of an information gathering tool.
• 4:58
  William Auten: You've characterized it as adversarial, and um if you're dealing with the deposition of a claimant or a defendant, I could see that being adversarial, but how does it how does it project to uh adversarial with a witness?
• 5:17
  Speaker: Yeah, it's it's it's it's certainly not listen.
• 5:19
  Speaker: If you look up deposition in a textbook, a legal textbook, it's gonna give the definition you just gave, right?
• 5:27
  Speaker: It's an information seeking tool.
• 5:29
  Speaker: If if that was the case, I would, I would, I would not be employed where I'm employed, I would not be the busiest guy uh in in the world.
• 5:38
  Speaker: Uh it's absolutely an adversarial process because there's a financial motivation.
• 5:42
  Speaker: I mean, listen, if it was just as simple as listen, just tell the truth, everything's gonna work out, and this problem will get settled.
• 5:49
  Speaker: Again, we I'd be living in a very different um world.
• 5:53
  Speaker: And so plaintiff attorneys, um, and they're and they're they're they're trained this way, they're they're trained to make it adversarial because they have a financial motivation.
• 6:03
  Speaker: And then once you have an adversarial slant to this, uh adversarial anger, the brain does not handle that particularly well.
• 6:14
  Speaker: And this is where witnesses start to go off the rails in a number of different ways.
• 6:18
  Speaker: Now, that being said, that being said, many plaintiff attorneys have have taken the opposite approach to say they come in, they go, I'm your friend.
• 6:29
  Speaker: I know you've heard it's adversarial.
• 6:33
  Speaker: No, no, no, no, it's not, it's not adversarial.
• 6:36
  Speaker: I'm just here, I'm no threat to you.
• 6:38
  Speaker: I'm I'm just here to gather information.
• 6:40
  Speaker: And then the brain goes, Well, well, good.
• 6:42
  Speaker: Well, then I have nothing, I have nothing to worry about.
• 6:45
  Speaker: And then blah, blah, blah, blah, blah.
• 6:47
  Speaker: And then it's just diarrhea of the mouth.
• 6:49
  Speaker: Yes.
• 6:49
  Speaker: And the witness doesn't shut up.
• 6:51
  Speaker: So both approaches, right?
• 6:53
  Speaker: Yeah.
• 6:54
  Speaker: The adversarial approach or the hey, I'm your friend approach, lead to the same outcome, which is way too much information and being extraordinarily helpful to someone that wants to rip money out of your wallet.
• 7:08
  Speaker: So witnesses have to understand kind of what's really going on.
• 7:12
  Speaker: We're not playing checkers, we're playing chess.
• 7:14
  Speaker: And you again, you could take the you could take the world's best.
• 7:17
  Speaker: By the way, did you know a checkers board and a chess board are completely identical?
• 7:22
  Speaker: They're 100% identical.
• 7:25
  Speaker: But you take the very best checkers player in the world and enter them into a chess tournament, what's gonna happen?
• 7:33
  Speaker: They're gonna get they're gonna get smoked, right?
• 7:35
  Speaker: And that's kind of with any witness, right, going into a deposition, it's a chess match, but the brain's kind of only wired to play checkers, and that's where a lot of these problems occur.
• 7:47
  William Auten: Interesting.
• 7:47
  William Auten: Uh, as to your comment about the nice guy approach, I worked with an attorney.
• 7:52
  William Auten: Um, she was brilliant because she took that nice guy approach, and it was described to me once as um she would slice you to bits and you never even knew you were being cut.
• 8:04
  Chantal Roberts: You might thank her for it.
• 8:06
  William Auten: Right, right.
• 8:06
  Chantal Roberts: Yeah, yeah, yeah.
• 8:07
  Chantal Roberts: Because what do we say in the South?
• 8:09
  Chantal Roberts: It's you you attract more flies with honey than vinegar.
• 8:12
  Speaker: And yeah, yeah, yeah, yeah, yeah.
• 8:14
  Speaker: And so you see you see both of these approaches, and so kind of some general advice going into deposition is you want to make sure um whoever your attorney is, is to have definitely have the scouting report, which is not hard to get.
• 8:28
  Speaker: Have the scattering report on what type of personality that you're dealing with.
• 8:33
  Speaker: It's not too hard to figure out because they will fall into one of those two categories.
• 8:37
  Speaker: And then you have the hybrid, right?
• 8:40
  Speaker: So, again, another way to working uh Chantel off of your uh example there.
• 8:46
  Speaker: Um, many depositions start with honey, but they kind of end with vinegar, right?
• 8:53
  Speaker: And that's the hybrid approaches hey, I'm gonna try the nice guy or nice gal routine and see how far that gets me.
• 9:02
  Speaker: If that's not working, plan B is the vinegar, right?
• 9:06
  Speaker: So you also see a lot of that as well.
• 9:08
  Speaker: But you know, you also have attorneys that come out and they're just 100% vinegar from start to finish.
• 9:15
  Speaker: So you have to be ready for both approaches, you have to be ready for the the hybrid approach, and you have to be specially trained to not let your brain misinterpret what's going on because that's that's really the fundamental error that happens.
• 9:32
  Speaker: And that's one of my jobs is to wire the witness brain to ensure that that does not happen.
• 9:40
  unknown: Yeah.
• 9:41
  William Auten: So let's talk a little bit about um defense and how you feel defensive when you're an adjuster in in the chair being deposed.
• 9:50
  William Auten: Um so it's easy to become defensive because you feel like you're under attack, like your work product is now under a microscope.
• 9:59
  William Auten: Everybody's everybody wants to pick it apart, second guess your decisions and things like that.
• 10:05
  William Auten: Um so how do you how how should a claims professional approach this uh this feeling um and not actually sound like they're being defensive, or does that matter?
• 10:17
  Speaker: No, it matters a lot.
• 10:19
  Speaker: Again, now this is a 100% natural response.
• 10:23
  Speaker: I mean, listen, I mean, do you I mean if your companies do like end-of-year evaluations of employees, what what a disaster.
• 10:32
  Speaker: You no one in this society today.
• 10:35
  Speaker: Sorry, I'm a I'm a grumpy Gen Xer.
• 10:37
  Speaker: I grew up the hard way, right?
• 10:39
  Speaker: I took the belt.
• 10:41
  Speaker: I took the belt literally.
• 10:42
  Speaker: My grandmother gave us the belt, right?
• 10:45
  Speaker: So I'm I'm kind of tough when it comes to it's you know, you sit people down and and you just try to have a friendly, kind of critical conversation about performance, and people go absolutely nuts.
• 10:56
  Speaker: So now that so that's a very natural you know response.
• 11:00
  Speaker: Now we're in a lawsuit, and then their work product, right, is going to be criticized.
• 11:05
  Speaker: So, you know, step number one is uh you know, understanding, right?
• 11:10
  Speaker: Cognitively.
• 11:11
  Speaker: This is what's going to happen, this is why it's going to happen.
• 11:15
  Speaker: All right.
• 11:16
  Speaker: Because what we want to prevent is the so the defensiveness, by definition, is a fight or flight response.
• 11:22
  Speaker: That's a subcortical part of your brain responding emotionally, and that's not the logical part of your brain, right?
• 11:31
  Speaker: So anytime we got the emotional part of your brain communicating, it's going to lead to trouble.
• 11:36
  Speaker: So preparation for that type of uh questioning is really, really important so that any witness, whether it's the claims adjuster or or anybody, understands here's what's gonna happen, here's why it's going to happen, right?
• 11:52
  Speaker: And your job is gonna be to stay logical part of our brain, not you know, emotional part of your brain.
• 11:58
  Speaker: Now, the the problem with this is that every witness, every witness on the planet gets told that.
• 12:04
  Speaker: Every witness, but witnesses are completely incapable of it because defensiveness is really, again, it's a survival response.
• 12:12
  Speaker: So it kind of it kind of just kind of happens, right?
• 12:16
  Speaker: So the way to prevent any type of survival response is what in psychology, us big guys in psychology call systematic desensitization, meaning witnesses have to be exposed to this process well before the deposition, and quite frankly, fall flat on their face to extinguish that response, right?
• 12:37
  Speaker: Because if you're going through this for the first time and they're like, why'd you write this?
• 12:41
  Speaker: Why'd you write this?
• 12:42
  Speaker: Why'd you write this?
• 12:43
  Speaker: Oh, and why did you not write this and why'd you not document this?
• 12:46
  Speaker: The brain's just gonna survival, survival, survival, right?
• 12:49
  Speaker: But if it's been through that process five or six times, it's it's it's gotten some feedback, uh, and the brain figures out, oh, wait, okay, wait, I'm we're playing chess.
• 13:01
  Speaker: This is a chess match, it's not checkers, right?
• 13:04
  Speaker: Then the brain can fall, you know, kind of into a really good groove, and then you can extinguish that defensiveness response.
• 13:12
  Chantal Roberts: Yeah, I think that that's the hard part though, isn't it?
• 13:15
  Chantal Roberts: Because even even though we are all sitting in our homes and we we go to the grocery store, we're no longer on the the planes with the spear and we don't have lions chasing after us, we still go to to that sort of you know thought process.
• 13:36
  Chantal Roberts: And uh I know that even though I like to consider myself to be very logical, I do have a couple of buttons.
• 13:46
  Chantal Roberts: And I'll tell everybody what my button is.
• 13:48
  Chantal Roberts: It's everybody does, you know.
• 13:50
  Chantal Roberts: It's well, what do you mean by that?
• 13:51
  Chantal Roberts: What do you mean by that?
• 13:52
  Chantal Roberts: What do you mean?
• 13:53
  Chantal Roberts: And I'm like, look, I didn't go to law school to know what and so I'll get all and and I have to remember to take a breath.
• 14:02
  Chantal Roberts: And if you're not used to that, as most adjusters aren't, I think that does lead to some disastrous events.
• 14:13
  Chantal Roberts: And and it's kind of I've seen this thing where I don't know if it's if it's the carriers trying to conserve some money or or you know, lots of adjustment expenses or whatever, but where the adjuster who adjusted the file is also the corporate witness of the carrier.
• 14:33
  Chantal Roberts: What a terrible idea.
• 14:35
  Chantal Roberts: I okay, so I kind of think so too, but nobody asks me, right?
• 14:39
  Chantal Roberts: Um, and and I and I've seen it done time and time again, because even though the adjuster goes in and says you're going to be the corporate representative, the attorney, plaintiff attorney will ask something like, Well, do you always do XYZ?
• 14:57
  Chantal Roberts: And you in this particular instance is carrier, but the adjuster knows we're talking about that file and answers as an adjuster rather than the corporate witness.
• 15:14
  Chantal Roberts: And so how do you prepare for that?
• 15:18
  Chantal Roberts: Or do you talk to the carrier and say, hey, you know, that might not be a good idea?
• 15:24
  William Auten: Before you do, can you can you help me understand what a corporate witness is versus an adjuster?
• 15:29
  William Auten: Because I'm not real clear on that.
• 15:32
  Speaker: It's a very, very big difference.
• 15:33
  William Auten: It sounds to me like it's a spokesperson of some sort.
• 15:36
  Speaker: Yeah, and and and this situation is kind of a a nightmare.
• 15:39
  Speaker: It's typically preventable, something like this.
• 15:42
  Speaker: So um let's let's start, let's go backwards.
• 15:45
  Speaker: A fact witness, right?
• 15:47
  Speaker: A fact witness is somebody that was there at the time has personal knowledge of a specific situation.
• 15:54
  Speaker: That would be your jester looking over their file, right?
• 15:57
  Speaker: That's that's by definition a fact witness, and they're gonna testify to facts in the case, right?
• 16:03
  Speaker: A corporate representative, and every state has kind of different ways they define that.
• 16:10
  Speaker: Sometimes it's called a corporate rep.
• 16:12
  Speaker: Uh, some states have what they call a PMQ, uh, person most qualified, or PMK, persons most person most knowledgeable.
• 16:21
  Speaker: Okay, so there could be a couple of different things, but let's just call it corporate rep overall.
• 16:26
  Speaker: This person that's been designated by the corporate rep is not speaking for themselves like the fact witnesses.
• 16:34
  Speaker: The fact witness is gonna get questions on specific, right?
• 16:39
  Speaker: Specific uh entries in the file, specific memories, specific knowledge to the case.
• 16:44
  Speaker: And they're talking, they're speaking from their own knowledge.
• 16:48
  Speaker: The corporate representative is not speaking as a person, they are speaking as as the company, as the corporation.
• 16:57
  Speaker: So that's really the really the main difference.
• 16:59
  Speaker: Uh the burden on the corporate representative is is incredible because they have to know everything.
• 17:08
  Speaker: Let's see, a fact witness can say, you know what, I don't know.
• 17:11
  Speaker: Or I don't remember, or you'd have to ask Bob right down the hall.
• 17:15
  Speaker: A corporate representative cannot say those answers.
• 17:19
  Speaker: That's against the rules.
• 17:21
  Speaker: And so they could pretty much have to know everything.
• 17:24
  Speaker: Now, here's there's some good news with this.
• 17:27
  Speaker: So plaintiff's counsel, before all this happens, has to submit a list of topics, right?
• 17:34
  Speaker: As to be line item topics to the defense saying, This is what I intend to ask the corporate rep.
• 17:43
  Speaker: Okay.
• 17:44
  Speaker: Defense has to agree on that, otherwise they go to the judge and they argue.
• 17:48
  Speaker: And then there's so say there's 15 topics, right?
• 17:51
  Speaker: Well, the corporate rep gets that ahead of time, number one, so that's good.
• 17:55
  Speaker: But now the corporate rep has to go gather documents, study policies and procedures, maybe go talk to other employees to get information to be prepared on those 15 topics, and they're gonna be speaking for the company, right?
• 18:12
  Speaker: So there's a big pretty big bird in there, and this is where it gets even worse.
• 18:18
  Speaker: And very few people know this.
• 18:20
  Speaker: And when they hear this, they go, Oh my god, is that true?
• 18:23
  Speaker: It's like, yeah, corporate rep depositions last forever.
• 18:29
  Speaker: Let me repeat that.
• 18:31
  Speaker: A corporate rep deposition lasts forever, and a fact witness deposition dies with the case.
• 18:40
  Speaker: So, for example, your corporate rep goes and gives a shitty deposition, right?
• 18:46
  Speaker: And then you get sued four years later, and they're they're the corporate rep.
• 18:49
  Speaker: The plaintiff attorney is going to get the deposition from the shitty deposition, and then if your corporate rep changes answers from the first deposition, that's all in play.
• 18:59
  Speaker: That would never happen with a fact witness.
• 19:02
  Speaker: So uh the stakes are very high with the corporate rep.
• 19:05
  Speaker: It's an incredible, and I mean incredible amount of preparation of again, both documents and getting gathering this information.
• 19:15
  Speaker: And um those depositions tend to last at least a full eight-hour day, and sometimes even spill over into a uh a second day.
• 19:26
  Speaker: So it's it's a completely um night and day different than what what the fact witness goes through.
• 19:32
  William Auten: And is a demand made for a corporate witness to show uh or is it something that's volunteered as a as a good idea to defend the case?
• 19:41
  Speaker: It's it's it's generally demanded by plaintiff's counsel.
• 19:44
  Chantal Roberts: Yeah, because what they're usually trying to find out is you know the whole uh pattern and practice idea, or the thing that I've been talking about a lot on LinkedIn lately is this whole idea of not necessarily delay, deny, defend, but that too.
• 20:02
  Chantal Roberts: Uh but the whole thing of the adjusters get bonuses based off of meeting corporate goals or or what have you.
• 20:13
  Chantal Roberts: And I've got to say, I I probably knew what the corporate goals were when I was working at big corporations like Liberty Mutual and Met Life.
• 20:21
  Chantal Roberts: Did it impact me and how I uh gave or made a settlement?
• 20:28
  Chantal Roberts: Absolutely not, because that money is really going to the board, not to my pocket.
• 20:35
  Chantal Roberts: It's not like it was, you know, hey, if Chantel does XYZ, Chantel gets, you know, $500 in bonus money.
• 20:42
  Chantal Roberts: Absolutely not.
• 20:43
  Chantal Roberts: And it also goes to, well, this is a whole kind of off topic, but I I still get mad at these plaintiff attorneys who who say this, where they'll say, like, oh, we're deliberately um lowballing people like our insureds, but we happen to be a uh stock mutual or whatever.
• 21:04
  Chantal Roberts: I'm like, but we are then just basically ripping off our board members.
• 21:07
  Chantal Roberts: So that doesn't make any sense.
• 21:09
  Chantal Roberts: I mean, like that whole thing doesn't make any sense.
• 21:11
  Chantal Roberts: But those are the things that you have to know about, uh, Bill A, uh, to to answer that question.
• 21:16
  Chantal Roberts: But that's a good, great question.
• 21:18
  Chantal Roberts: Yeah.
• 21:18
  Chantal Roberts: So how is an adjuster supposed to know what the, I don't know, financial ideals of the case.
• 21:26
  Speaker: Yeah, so here's so here's the problem that that you face.
• 21:29
  Speaker: Um, and I've seen it done, it's not you never to the extent you can you never want the adjuster on the case also being the corporate rep.
• 21:40
  Speaker: Now, sometimes this is unavoidable for certain reasons, but that's not a good combination.
• 21:46
  Speaker: If you're stuck with that, the best way to handle that, which is a defense attorney maneuver, is you tell the other side, listen, okay, um, we're gonna have an as pain.
• 21:59
  Speaker: As this is, you're gonna have to depose my witness twice.
• 22:04
  Speaker: The first deposition will be the fact, meaning you can ask this person factual questions based on their knowledge, their experience on this specific matter.
• 22:15
  Speaker: And then the second deposition will be the corporate rep deposition, in which you can ask them questions about corporate conduct, corporate decision making, all that stuff.
• 22:26
  Speaker: Trying to mix those two together and kind of take put on the hat, take off the hat, put on it's it's almost impossible and something that you'd want to avoid.
• 22:36
  Chantal Roberts: And that's what I've seen is that there have been two depositions, one as the adjuster, one as the corporate representative, but it's the poor adjuster who gets confused.
• 22:48
  Chantal Roberts: Yes, more so than anything.
• 22:51
  Chantal Roberts: And like I said, it starts off with this question of well, do you always answer or do you always allow such and such to occur?
• 23:00
  Chantal Roberts: And the adjuster will inevitably say, Do you mean me personally or as a carrier?
• 23:06
  Chantal Roberts: And and you're like, Oh, dude, you are the corporate representative at this time.
• 23:10
  Chantal Roberts: You don't have, I mean, yeah.
• 23:12
  Speaker: Yeah, now listen, it's not now it now funny.
• 23:15
  Speaker: So what happens again, depositions, nothing, listen, nothing positive happens at a deposition.
• 23:23
  Speaker: Nothing.
• 23:24
  Speaker: Nothing.
• 23:26
  Speaker: Now, a good skill for a witness to learn, particularly a fact witness, is to ask that clarification question.
• 23:34
  Speaker: Because here's what will happen at a deposition of a fact witness, which happens a lot, is the fact witness will be baited with corporate witness questions.
• 23:45
  Speaker: So, number one, you need a good defense attorney to object, but you need a very aware fact witness to say, you know what, that that's outside of my scope and my knowledge.
• 23:58
  Speaker: You'd have to ask somebody else that question, or that question's more, you know, better designed for the corporate rep.
• 24:04
  Speaker: I'm here to speak about my knowledge, right?
• 24:07
  Speaker: That's very important with the fact witness because what ends up happening is you have a fact witness getting deposed, and then some corporate questions get sprinkled in the script.
• 24:18
  Speaker: And the fact witness is like, hey, this is gone great.
• 24:21
  Speaker: This is and then a question comes up, which they should punt the football.
• 24:25
  William Auten: Right.
• 24:26
  Speaker: But no, they grab right on, oh yeah, I can answer that, sure.
• 24:29
  Speaker: And then they start talking essentially out of their scope.
• 24:33
  Speaker: And then this is what makes the corporate rep deposition a disaster.
• 24:38
  Speaker: Because then when your corporate reps are prepared and getting it right, they go, Oh, by the way, you know, we we deposed Susie last week.
• 24:45
  Speaker: She said X, and now you're saying Y.
• 24:47
  Speaker: And now you have inconsistencies among the witnesses.
• 24:50
  Speaker: So if you are being deposed as a fact witness, stay in your lane, but your defense attorney should be right there to jump in, object, and essentially bark a little bit at playoffs counsel, going, now we're, you know, that's an inappropriate question because that's really for the corporate rap.
• 25:07
  William Auten: Great, great information.
• 25:09
  William Auten: So let's talk about the lane occupied by the claim file handler, as opposed to the corporate uh witness.
• 25:17
  William Auten: And um the questions will be asked about the adjuster's file notes and the entries that they've made uh throughout the file.
• 25:26
  William Auten: And we often talk about having good claim notes.
• 25:29
  William Auten: You know, write your claim notes as if they will be uh, you know, part of the part of the court transcript, uh read read aloud in front of a judge and a jury.
• 25:39
  William Auten: Um sometimes the file notes hurt you, sometimes they help you.
• 25:44
  William Auten: Uh what's the best way to write claim notes?
• 25:48
  Speaker: Uh balanced, right?
• 25:50
  Speaker: Because you have to now listen, I work in all areas.
• 25:52
  Speaker: Balanced.
• 25:53
  Speaker: Wait a way, wait.
• 25:54
  William Auten: That's that's a big word for a broad topic here.
• 25:57
  Speaker: So I know.
• 25:58
  Speaker: Um we work, I work in all areas of litigation, as does my team, and we do plenty in the uh medical industry, right?
• 26:07
  Speaker: And like medical malpractice, where the medical notes, the medical record is like everything in a case.
• 26:14
  Speaker: And if you want to see some disastrous note-taking, wow, right?
• 26:19
  Speaker: Um, and that's the first thing that's attacked.
• 26:22
  Speaker: And in in this case that we're talking about, that's gonna be the thing.
• 26:25
  Speaker: And what you have, and what the medical people say, which makes perfect sense, which essentially your people are gonna say, is like, I can't document everything.
• 26:35
  Speaker: Number one.
• 26:36
  Speaker: Um number two, if I did document everything, I I couldn't do, I couldn't do my job effectively because I'm I'm handling claims, like I I can document, but I can only do so much, right?
• 26:48
  Speaker: And so you have this kind of effectiveness versus efficiency argument.
• 26:52
  Speaker: And then if you go back to the in other words, if you max if if you documented everything perfectly, you cannot do your job because you become your job efficiently.
• 27:05
  William Auten: You become a novel writer on a daily basis.
• 27:07
  Speaker: You cannot do it because you're gonna fall way behind because you're spending all your time documenting.
• 27:11
  William Auten: Yeah.
• 27:12
  Speaker: Then you go to the other half of this, right?
• 27:14
  Speaker: The other half of this equation, if you document, if you're high efficiency and your documentation's very brief, if not sloppy, right, you're very efficient, but now you're very ineffective.
• 27:29
  Speaker: So both of those are bad news.
• 27:32
  Speaker: So where do you have to be?
• 27:33
  Speaker: You have to be in the middle of that bell curve, right?
• 27:36
  Speaker: And so that's where I think um having that balance, having uh internal meetings and expectations with your claims people and your adjusters, and really importantly, which is this is what the medical people um try to do at some institutions I have seen, is they will do like quarterly just kind of spot checks and look at notes and give you feedback on, hey, this is kind of the model, right?
• 28:04
  Speaker: Because we know like this template note is very, very balanced.
• 28:08
  Speaker: Here's what's good about it.
• 28:10
  Speaker: We want to kind of be as close to this as possible, and then to have some sort of whether it's quarterly or whatever, review process to make every every everybody's on the same page.
• 28:20
  Speaker: Because as you can imagine, with any type of policy or parameter you give your folks, it always starts off well, but then you get what I call drift.
• 28:30
  Speaker: Things get busy.
• 28:32
  Speaker: And what do you do?
• 28:34
  Speaker: You start cutting corners or things like that, and then you end up with you know, bad documentation or insufficient documentation or confusing documentation.
• 28:44
  Speaker: So you want the balanced approach that's going to meet the need to handle the file.
• 28:49
  Speaker: It can't be too much, it can't be too little, and really the only way to do that is to have some sort of feedback mechanism to make sure everybody's on the same page, corners are not being cut, and that's essentially how you're going to prevent a lot of headaches going forward.
• 29:05
  Chantal Roberts: Yeah, and and we are as as adjusters and carriers are supposed to have that feedback loop, whether it be monthly or quarterly, or when the file closes, which I think is too late at that point.
• 29:18
  Chantal Roberts: Because if we're thinking about claims, and just exactly what Bill Otten had said, you know, we've we we have to write good notes, but then God forbid one of us gets hit by a bus and then we have someone uh taking over our file.
• 29:36
  Chantal Roberts: Or as we know, litigation usually happens two years after the event, and then maybe another two years until we get to the courthouse.
• 29:45
  Chantal Roberts: Yeah, nobody's gonna remember what was said or what and nine times out of ten, it's not the same adjuster handling it because by the time it gets to litigation, it goes to the litigation team or whatever.
• 29:57
  Chantal Roberts: And I hear about these uh memory tests or whatever that that people like you, Bill.
• 30:06
  Chantal Roberts: How do you answer?
• 30:08
  Chantal Roberts: Um, just kidding.
• 30:09
  Chantal Roberts: Um, is that our memories are not that great.
• 30:14
  Chantal Roberts: We like we actually have really bad memories.
• 30:17
  Chantal Roberts: And of course, I'll say that I don't remember what I had for breakfast this morning, and it is sitting right here on my right.
• 30:23
  Chantal Roberts: Yeah, um, so I don't know what to say about that.
• 30:28
  Speaker: Yeah, memory is notoriously um bad.
• 30:32
  Speaker: A lot of research on that, a lot of research on that.
• 30:36
  Speaker: I mean, the what I tell every every witness, um, you know, if there's a car crash out here on the corner of Maple and Elm, and there's 10 eyewitnesses, and the cops come, they interview 10 people.
• 30:50
  Speaker: How many different stories are you gonna get?
• 30:52
  Speaker: 10.
• 30:53
  Speaker: 12.
• 30:53
  Chantal Roberts: You're gonna get 12 because you got the two people who are trying to do it.
• 30:57
  Speaker: Because so he's got it's it's really, really incredible um how memory works.
• 31:02
  Speaker: And so you know, the key to this, which by the way, is probably one of the most common mistakes we see in any testimony, um, is is guessing, is guessing.
• 31:14
  Speaker: And a lot of people um guess kind of unknowingly, and there's a certain pressure.
• 31:20
  Speaker: Like, I mean, a deposition starts with, you know, raise your right hand, do you swear to tell the truth?
• 31:24
  Speaker: I mean, it's it's it's a formal, right?
• 31:26
  Speaker: It's a form of proceeding.
• 31:27
  Speaker: And then what happens, and I mean, I'm talking every witness, I don't care if it's the CEO all the way down to the janitor.
• 31:36
  Speaker: There always comes a question and your your brain's thinking about it, and your brain's like, okay, you know what?
• 31:43
  Speaker: I really, I really either don't know what this, I don't know what the answer is, which is separate from memory, versus I don't, I don't remember.
• 31:54
  Speaker: I don't have memory recall of why I did this or or what I said at the time.
• 31:59
  Speaker: The correct answer is I don't know, or I don't remember, but God, if I give that answer, I'm gonna look like an I'm gonna look like an idiot, number one, or we're gonna lose this case.
• 32:11
  Speaker: And so the brain, brain's a very dangerous thing, right?
• 32:14
  Speaker: So the brain goes, aha.
• 32:16
  Speaker: I'm gonna come up with something here, so I don't look like an idiot, and we don't lose this case.
• 32:24
  Speaker: And what does it do?
• 32:25
  Speaker: It gives kind of an educated guess.
• 32:28
  Speaker: And then the problem is that guess is half right at best.
• 32:34
  Speaker: And now that's on one coin.
• 32:36
  Speaker: So now let's start doing some math over a four-hour deposition or a six-hour deposition.
• 32:41
  Speaker: You do that once, and then the next time that happens, what do you do?
• 32:45
  Speaker: Well, now you're in this habit, and so this is how error gets introduced into the equation and then exponentially multiplies.
• 32:54
  Speaker: Now imagine if you have multiple witnesses on the same case doing the same thing.
• 32:58
  Speaker: This is where things get really, really, really bad.
• 33:01
  Speaker: So the witness has to be trained that number one, it's oh it's okay emotionally, it's okay if you don't remember or know something.
• 33:08
  Speaker: Number two, you don't look like an idiot.
• 33:12
  Chantal Roberts: You don't, you'll feel like one.
• 33:14
  Chantal Roberts: I want to say that because your brain hates a vacuum.
• 33:17
  Chantal Roberts: It's like space, it hates a vacuum.
• 33:19
  Speaker: So back to the very first thing I told you systematic desensitization.
• 33:25
  Speaker: If your brain rehearses this experience and knows how to cope with it prior to the deposition, when you get into the deposition, it'll handle it as such.
• 33:37
  Speaker: Right?
• 33:37
  Speaker: If you haven't rehearsed that response, this is the same, it's the same way you deal with defensiveness.
• 33:42
  Speaker: Now we're just talking a different, a different emotion.
• 33:45
  Speaker: These are both survival responses.
• 33:47
  Speaker: One's more kind of shame or embarrassment, like, oh no, I look like an idiot, right?
• 33:51
  Speaker: Versus one's defensive.
• 33:52
  Speaker: They're both emotional responses.
• 33:54
  Speaker: So, how do you blunt emotional responses?
• 33:56
  Speaker: Desensitization, repeated exposure to a stimulus.
• 34:01
  Speaker: Here, great psychology lesson for you.
• 34:03
  Speaker: Repeated exposure to a stimulus decreases the emotional reaction to that experience over time, right?
• 34:13
  Speaker: So if you see a stimulus over and over, the first couple of exposures to that stimulus can be very reactionary, survival mechanism, right?
• 34:22
  Speaker: By the time you've seen it 10 times, you don't have the it's like watching the scary movie, right?
• 34:27
  Speaker: The first time you watch it, it scares the living shit out of you.
• 34:30
  Speaker: You watch it five times, you're like, yeah, he's he's got the axe behind the door.
• 34:35
  Speaker: You know, she you know, she's an idiot for walking in the room.
• 34:37
  Speaker: I mean, run, run.
• 34:39
  Chantal Roberts: It's the intern, it's the um, what's the insign in red syndrome uh from Star Trek?
• 34:45
  Speaker: You know, you're like the brain of how to deal with it, right?
• 34:48
  Speaker: So your brain learns how to deal with this.
• 34:50
  Speaker: So this is why preparation for any testimony is so critical.
• 34:54
  Speaker: But where I come in, right, it's the psychological prep, it's not the looking at the document, that's one half of the preparation.
• 35:01
  Speaker: It's the psychological preparation of how am I going to deal with these various emotions that are going to come up?
• 35:07
  Speaker: You have to really do both.
• 35:09
  William Auten: Yeah, but can't uh the phrase I do not recall get overused?
• 35:12
  William Auten: And isn't that a can't that be problematic as well?
• 35:17
  Speaker: It's only it's only bad if it looks bad.
• 35:19
  Speaker: Oh, it's only bad if it looks bad, meaning senators, and we've measured this with jurors.
• 35:26
  Speaker: It's okay when it appears reasonable, right?
• 35:30
  William Auten: Okay, again, it's the question is very specific and you don't recall the juror would sit there and say, Well, I wouldn't recall that either.
• 35:39
  Speaker: Exactly.
• 35:39
  Speaker: But when it's repeated and it looks bad, meaning this is stuff you should really know, and it seems it doesn't seem reasonable to not know that, right?
• 35:50
  Speaker: That's what this is more of a perceptual battle.
• 35:53
  Speaker: Because listen, if they ask you 10 questions in a row of something that happened on Tuesday morning at 8 20 a.m.
• 36:02
  Speaker: from five years ago, and they keep and you have to say, Yeah, I don't recall, you know, if you have to say that 10 times in a row, that's really not um unreasonable.
• 36:13
  Speaker: But when they're asking you questions, particularly when there's you know documentation involved, and you appear as though you have no earthly idea what's going on, or you're not prepared, then it the same answers do look terrible.
• 36:28
  William Auten: So that sounds like um a good segue to the next topic, which is uh the reasonable reasonable person standard.
• 36:35
  William Auten: We use this a lot when we're evaluating liability.
• 36:38
  William Auten: Uh, what would a reasonable person do in a uh in a in a scenario where an adjuster is being deposed about what they did or didn't do in a file?
• 36:48
  William Auten: Um can you talk a little bit about how this reasonable adjuster standard might might be applicable to the actions of an adjuster?
• 36:58
  Speaker: I mean, juries are pretty simple, right?
• 37:01
  Speaker: With any communication, you know, what do they want to see?
• 37:04
  Speaker: Well, number one, they want to see clarity, right?
• 37:08
  Speaker: So you want to be communicating uh you know in in a in a clear way.
• 37:13
  Speaker: And also um timeliness uh uh is is important.
• 37:17
  Speaker: If you if you don't have clarity and you don't have timeliness, every juror is gonna think that um you know something is something is wrong.
• 37:26
  Speaker: So I think those are those are those are two areas that you know at the jury level, which would be uh a big deal, and but but they're very, very basic.
• 37:35
  Chantal Roberts: I think the the problem would be, and this is obviously where I come in, and in a lot of cases, I see plaintiff attorneys actually doing this more than defense counsel is getting an expert witness and explaining what reasonableness is for an adjuster.
• 37:53
  Chantal Roberts: Because you sometimes, and our adjuster listening audience knows what I'm talking about, we've got that one insured or that one claimant who calls five times in in an hour, and we it happens to be our lunch hour, and we're like, dude, we can take a lunch, you know, and so I have to get up on the stand and say, yeah, it is perfectly reasonable that we can take a lunch or our dog to the vet or whatever, I don't know.
• 38:27
  Chantal Roberts: Um, so you don't necessarily have maybe what a reasonable person is versus what an adjuster reasonable is.
• 38:35
  Speaker: Yeah, this is more of a trial uh issue.
• 38:38
  Speaker: This is not much of a deposition issue, but at trial, um in your industry or in a lot of other other industries too.
• 38:47
  Speaker: Like, like, for example, going back to the medical stuff, it's a good analogy to uh to use, you know, most jurors have kind of like this idealistic viewpoint of medicine.
• 39:00
  Speaker: Like you come into the doctor, you don't feel good, they're gonna run every test on the planet and tell you what's wrong with you in the next 25 minutes.
• 39:09
  Speaker: Like that's what people expect, right?
• 39:12
  Speaker: And that's not reasonable, right?
• 39:14
  Speaker: And so at trial, you have to have both your fact witnesses, but also your experts to essentially redefine what reasonable means for the industry.
• 39:24
  Speaker: Like, here's how the system works and here's why it works.
• 39:27
  Speaker: And then once the juror understands that, it kind of resets the playing field.
• 39:32
  Speaker: For your industry, it's the same thing.
• 39:35
  Speaker: There's this idealistic, oh, okay, a tree just fell on my house.
• 39:40
  Speaker: I'm calling my insurance company.
• 39:42
  Speaker: Construction should be starting next Friday.
• 39:44
  Speaker: I mean, come on, I dream I dream.
• 39:46
  Speaker: Whatever, right?
• 39:47
  Chantal Roberts: That's what the commercial show.
• 39:49
  Speaker: Exactly.
• 39:49
  Speaker: Yeah, right.
• 39:49
  Speaker: Yeah, thank you.
• 39:50
  Speaker: Uh Jake from Stay Farm.
• 39:52
  William Auten: Yes, that's what the commercial show.
• 39:54
  Speaker: Yeah, or the uh who's the uh the mayhem.
• 39:57
  Speaker: Well, mayhem, yeah.
• 39:59
  Speaker: So those commercials, while hilarious, I guess set up this kind of false expectation, right?
• 40:06
  Speaker: And so that doesn't necessarily come out in deposition the way you want it to.
• 40:14
  Speaker: And why doesn't it?
• 40:15
  Speaker: Is because the bad guy's asking you questions that yeah, your attorney's not asking a squat at deposition, and which goes back to kind of this pressure of deposition is that it's all bad news, it's four to eight hours of bad, tough questions.
• 40:30
  Speaker: They're not gonna say, Oh, will you please define like this?
• 40:33
  Speaker: Is not a deposition question any adjuster gets.
• 40:36
  Speaker: Like, hey, explain to me the reasonable way that you handle your claims and your files.
• 40:42
  Speaker: Tell tell me the reasonable way.
• 40:44
  Speaker: No, you're not getting those questions.
• 40:45
  Speaker: They're all gonna be more attack questions, right?
• 40:49
  Speaker: So at trial, which again is you know, typically years afterwards, um, the witnesses, both facts and um expert witnesses, this is really the only time they get the friendly questions from their attorney going, okay, explain to the jury, you know, how uh, you know, how this communication works or how clean or how you know files are handled.
• 41:13
  Speaker: When you have this situation, how does this and then those explanations, the juror has the opportunity to go, oh wow, like I didn't, I didn't know that.
• 41:22
  Speaker: And that really resets the the playing field of reasonability.
• 41:27
  Speaker: If that's never done, then the idealistic, you know, definition gets to get carried into deliberations, and that's how you lose cases, because those idealistic definitions um they don't they don't they don't work, they're impossible.
• 41:44
  Speaker: They're impossible.
• 41:44
  William Auten: It's amazing this the assumptions that I come across every day, both from attorneys and and and claim claimants, even policyholders, these assumptions that they have about you know about their policy and a lot of claimants' attorneys, they'll say, Well, you've got a million dollar limit.
• 42:00
  William Auten: What like when are you gonna write the check?
• 42:02
  William Auten: Like, what's the deal?
• 42:03
  William Auten: You know, and uh there's that education, uh filling in those missing pieces of information for some of these folks, and I'm sure attorneys know how this works, but they play stupid, I guess.
• 42:16
  William Auten: I don't know.
• 42:16
  William Auten: Um, but they uh, you know, it's it's really fascinating.
• 42:20
  William Auten: And it and we become educators most more so for insureds and and claimants because they have faulty understandings of of how all this stuff works as well.
• 42:31
  William Auten: I could only imagine a jury having those same gaps in understanding that have to be filled in, um, hopefully, hopefully prior to the questions uh in a deposition.
• 42:43
  Speaker: But it's a big, it's a big, it's a big challenge.
• 42:46
  Speaker: It's a big challenge, but it's again the problem with the t challenge is it's really it's really done in a in a in a courtroom.
• 42:54
  Speaker: Rarely, rarely does that come out cleanly the way you want it, uh, you want it to have happen in deposition.
• 43:02
  Chantal Roberts: You know, you used a great big old word neurocognitive, um, which I guess means the neuro neurology, uh, like the brain, basically, and knowledge.
• 43:13
  Chantal Roberts: Okay, great.
• 43:14
  Chantal Roberts: Yay, me, I'm smart.
• 43:16
  Chantal Roberts: And so the neurocognitive way uh to approach communication, and Bell and I talk a lot about communicating as adjusters to the claimants, either first party or third party, and setting up these expectations and these timelines and things that we're supposed to do.
• 43:35
  Chantal Roberts: So let's go kind of like before the deposition uh and everything.
• 43:41
  Chantal Roberts: What would your advice be for um understanding how adjusters should approach these things with our word choice, our tone, um, and the structures, even before we get to opposing counsel and juries and regulators and these sorts of things?
• 43:59
  Chantal Roberts: Thanks.
• 44:01
  Speaker: Yeah.
• 44:01
  Speaker: Um that that's really a tough question because really the how you order information is really important to the human brain, right?
• 44:11
  Speaker: So um if you if you skip three steps and jump right to step four, that's generally not a good way to do things, right?
• 44:20
  Speaker: So anytime you're gonna explain something um to to anyone, yeah, starting basic, giving them that orientation, right, versus jumping ahead.
• 44:30
  Speaker: That's pretty much one of the main problems you get in how people get emotional.
• 44:36
  Speaker: And so again, you're maybe, you know, something that you need to tell somebody, well, how you set that up is extraordinarily important to how that so back to neurocognitive, how that information is going to be processed will be very different if it's presented fourth on a list versus first or second, right?
• 44:59
  Speaker: Um, and so how you orient the person you're talking uh to, you know, how you orient them to that to the information, to the system, and kind of set it up so it lands the best way is the best way to do that.
• 45:14
  Speaker: So, in other words, if you're too direct and too blunt and cut right to the chase, that can lead to a lot of emotional reactions and kind of again, you you want thought processes, right?
• 45:26
  Speaker: You don't want reactivity because that's by definition uh emotion.
• 45:30
  Speaker: So how you talk to people, how you set things up, how you educate them before you tell them something important is really key.
• 45:38
  Speaker: Because if you just try to be efficient and try to be direct, that can pretty much blow up in your face emotionally.
• 45:46
  William Auten: Yeah, slow step them.
• 45:48
  Speaker: Yeah, yeah, yeah.
• 45:49
  Chantal Roberts: And you and I think that you may want to even do that in your deposition, would you not, when they say, What how do you set up a file?
• 45:56
  Chantal Roberts: Well, I start with step one, which is blah blah blah.
• 46:01
  Chantal Roberts: Or I would think that that's the way you'd want to do it, even if you were doing a deposition.
• 46:06
  Speaker: Yeah, a deposition if they ask kind of general questions on say how you do a certain process.
• 46:12
  Speaker: Rather, now the mistake would be is going on a four-minute lecture, right?
• 46:18
  Speaker: It's you always want to be kind of bullet point fashion, so you're not getting too wordy.
• 46:22
  Speaker: Uh, you want to tell the truth, but you don't want to necessarily be helpful uh with the enemy.
• 46:27
  Speaker: So a great way to answer those questions.
• 46:30
  Speaker: I I'm a very big fan of bullet point formats because I have this philosophy, which is true by the way, because as you know, I'm I'm always right.
• 46:38
  Speaker: Yes, absolutely.
• 46:40
  Chantal Roberts: I just I told Bill A that.
• 46:42
  Speaker: I mean, come on.
• 46:42
  Speaker: I'm starting to learn that as we talk here.
• 46:45
  Speaker: So any question, I don't care what the question is, any question can be answered in five seconds or less.
• 46:52
  Speaker: Any question.
• 46:55
  William Auten: You mean you mean uh five seconds of words or five seconds of thought before you answer?
• 46:59
  Speaker: No, five seconds of words of information.
• 47:01
  Speaker: Okay, got it.
• 47:02
  Speaker: Five seconds or less.
• 47:04
  Speaker: Any question, right?
• 47:07
  Speaker: So the this is where people struggle, is they get the question of, well, yeah, educate me about the claims process, or a claim comes in, step, kind of tell me how you handle this situation, and you're like, wow.
• 47:20
  Speaker: And so there's kind of two ways to answer questions.
• 47:22
  Speaker: This goes back to chess versus checkers.
• 47:24
  Speaker: Remember, your brain's wired for society.
• 47:26
  Speaker: So if if Chantel and I were at a holiday party and we just met, and I went, oh, nice to meet you.
• 47:35
  Speaker: I'm Bill, you're Chantel.
• 47:36
  Speaker: Oh, you work in the okay.
• 47:38
  Speaker: Uh like tell me what you do.
• 47:40
  Speaker: Like, tell me what you're like, how like what do you do?
• 47:42
  Speaker: What's your day like?
• 47:43
  Speaker: How do you do things?
• 47:44
  Speaker: Her answer is probably gonna be at least a minute long.
• 47:48
  Speaker: Why?
• 47:48
  Speaker: Because we're in society.
• 47:50
  Speaker: She wants to be friendly, she wants to explain, she's gonna make life easy for me, and I'm gonna be sitting there going, Oh, wow, that's really, really interesting.
• 47:58
  Speaker: And then she's gonna ask me that, and I'm gonna do the same thing, right?
• 48:01
  Speaker: That's a terrible habit at deposition because a lot of extra information comes out.
• 48:06
  Speaker: Extra information equals extra questions, which is not what we want, right?
• 48:12
  Speaker: So the best way to answer that question at deposition, which happens to be very antisocial, is if I ask Chantel, well, what do you do?
• 48:21
  Speaker: And she goes, I do A, I do B, I do C.
• 48:23
  Speaker: And she shuts up and waits for me to respond.
• 48:28
  Speaker: That's not maybe the friendliest response, the most social like satisfaction, but it's a real, it's it's a true answer, it's a safe answer, and it's highly appropriate for the deposition context where people kind of get off the rails, is they get very conversational at deposition, and they start storytelling, and then before you know it, they can't shut up.
• 48:50
  Speaker: And what you're doing essentially, like if somebody's pointing a gun at you, don't hand them a box full of bullets, right?
• 48:57
  Speaker: You'd want to decrease the ammunition.
• 48:59
  Speaker: So the balancing act here is I gotta tell the truth, but I could tell the truth very strategically, I can be very concise and force the questioner to ask the right questions.
• 49:11
  Speaker: That's their job.
• 49:12
  Speaker: They're supposed to ask the right questions to get the information, but we in society, like you'd never do that in society because you'd you'd lose all your friends, right?
• 49:22
  Speaker: You wouldn't be very popular.
• 49:23
  Speaker: And so our brain is not accustomed to communicating in that fashion, but that's what it has to learn.
• 49:29
  Chantal Roberts: And and that is a very good point, I think, for our adjusters to understand.
• 49:34
  Chantal Roberts: So I'm going to reiterate it, is that the attorney may not be asking the right questions.
• 49:41
  Chantal Roberts: You may know the answer to the question the attorney means to ask.
• 49:46
  William Auten: Should be asking.
• 49:47
  Chantal Roberts: Should be asking.
• 49:48
  Chantal Roberts: And and I know that I have come across that before.
• 49:52
  Chantal Roberts: And I even, and going back to what Bill Kay is talking about, is sitting there going, shut up, shut up, shut up, because I I know I want to volunteer information because I know what the attorney means to ask, but that is not what she asked.
• 50:10
  Speaker: Right.
• 50:11
  Speaker: It's a massive struggle.
• 50:13
  Speaker: It's a massive struggle.
• 50:14
  Speaker: Because again, the brain misinterprets all of it, the chess versus checkers, right?
• 50:18
  Speaker: So they're dancing around a topic, and your brain knows, okay, I know where they're going here.
• 50:24
  Speaker: God, this is annoying.
• 50:26
  Speaker: I want to get the hell out of here.
• 50:28
  Speaker: So I am going to like I'm going to ask the question, and I'm going to fix the question for the attorney so I can facilitate this process.
• 50:38
  Speaker: What I mean, remember, you're working with the enemy here, right?
• 50:43
  Speaker: We don't want to make life easy.
• 50:44
  Speaker: Your job is to be honest, not helpful.
• 50:46
  William Auten: Right.
• 50:47
  William Auten: Make them work for their lunch.
• 50:48
  Speaker: I swear to tell the truth, right?
• 50:50
  Speaker: That's the oath.
• 50:51
  Speaker: But witnesses get up there and they hear something very the witness hears, I promise to be as helpful as possible and share as much information.
• 50:58
  Speaker: So help me, God.
• 50:59
  Speaker: That's not the oath, right?
• 51:02
  Speaker: And so there's this urge, and boy, is it seductive, right?
• 51:06
  Speaker: To it's like, God, I'm gonna I'm gonna help this attorney out so I can go home because I don't want to be in this chair anymore.
• 51:13
  Chantal Roberts: It's especially hard when that attorney is using that honey that we were talking about, because that's the social contract.
• 51:19
  Chantal Roberts: Like, how are you?
• 51:20
  Chantal Roberts: Well, I'm doing fine.
• 51:21
  Chantal Roberts: How are you?
• 51:22
  Chantal Roberts: Yeah, it's I could be having a horrible day, but I'm not gonna say that unless you were a good friend.
• 51:27
  Speaker: And there's a third version of this that Bill just kind of brought up.
• 51:30
  Speaker: And so we talked about the vinegar honey, right?
• 51:33
  Speaker: So you have no, there's a different way to put this is you have attorneys that are aggressive, and they come and they use aggressive and they want the truth.
• 51:41
  Speaker: It's right back to the movie A Few Good Men, right?
• 51:44
  Speaker: I want the truth.
• 51:45
  Speaker: You can't handle the truth, and that's the way the deposition goes.
• 51:48
  Speaker: That's the way they want it because they're the aggressors.
• 51:51
  Speaker: That's like one type of question you're gonna get.
• 51:53
  Speaker: But then you have the polar opposite, which is the nice guy or the nice gal approach.
• 51:59
  Speaker: Bring down any type of any type of threatening, they just remove that and go, hey, listen, I'm not here to hurt you.
• 52:06
  Speaker: I'm just here to get answers to questions.
• 52:08
  Speaker: We're not we're not, I'm gonna, you're gonna be home by dinner, it's gonna be easy, blah, blah, blah, blah, blah.
• 52:12
  Speaker: And your brain's like, oh, well, and then you can't shut up, right?
• 52:15
  Speaker: So one you're fighting, fighting or flighting.
• 52:18
  Speaker: The other one, you're you won't shut up because there is no threat.
• 52:21
  Speaker: Those are the two types, but there's a third type that's actually extraordinarily dangerous.
• 52:26
  Speaker: And boy, am I aging myself here.
• 52:28
  Speaker: I am aging myself.
• 52:30
  Speaker: So any of you are younger, you're not gonna understand this, but it would be called um you have to be born in the 70s or earlier to understand this.
• 52:39
  Speaker: So it's called the Columbo approach, which is essentially, and for the for the younger people, the way to it's it's essentially plain stupid.
• 52:49
  Speaker: So, you know, it's the qu this is very, very manipulative, by the way.
• 52:53
  Speaker: So the questioner asks the question of your adjuster at deposition.
• 52:57
  Speaker: Your adjuster gives a very fine, reasonable answer.
• 53:01
  Speaker: And the turn sister and goes, literally, they will scratch their head and go, you know what?
• 53:08
  Speaker: Uh I just, you know, I I don't work in insurance, I'm just a dumb attorney.
• 53:13
  Speaker: I'm not, I'm not quite following, like, help help me understand.
• 53:17
  Speaker: And then your witness is like, oh no.
• 53:20
  Speaker: They don't understand my oh no, I better, and you've just fallen, you've just taken the bay.
• 53:26
  Speaker: So though there, there's this, it's a smaller percentage of attorneys, but the attorney that plays stupid, they play dumb, are are kind of crazy like a fox, right?
• 53:36
  Speaker: They are setting you up, and then you're yapping away, helping this attorney.
• 53:42
  Speaker: Oh, poor them.
• 53:43
  Speaker: They don't understand insurance.
• 53:44
  Speaker: So I need to educate them, and you fall right into that.
• 53:47
  Speaker: So that's a third variation of questionnaires that you'd run into.
• 53:51
  Chantal Roberts: I would also point out that some attorneys just sit there after you've spoken for, I don't know, a good 10 seconds or whatever, because again, we hate voids, and and so we just start talking again.
• 54:09
  Speaker: Yeah, or I mean it's a it's a complete setup.
• 54:11
  Speaker: Yeah, it's a very manipulative maneuver, by the way.
• 54:14
  Speaker: It's a man that's why I call this a chess match.
• 54:17
  Speaker: Everything that's done at a deposition, everything is a setup.
• 54:22
  Speaker: The whole thing.
• 54:23
  Speaker: Everything.
• 54:25
  Speaker: Um, and that's one of them.
• 54:27
  Speaker: You give a yeah, you give an answer to a question and they sit there and they they're giving you that, like that's like that's your answer.
• 54:34
  Speaker: And nine out of ten people go, oh shit, like I better, uh oh, uh oh.
• 54:40
  Speaker: I look like that.
• 54:41
  Speaker: Then it's the brain's like the next question hasn't come, therefore my answer must have been insufficient.
• 54:47
  Speaker: I'm gonna keep talking.
• 54:48
  Speaker: Right.
• 54:49
  Speaker: And that's the that's a that's a that's the trap.
• 54:52
  Chantal Roberts: That's a trap.
• 54:53
  Chantal Roberts: Yeah, so shut up, adjusters.
• 54:56
  Speaker: Yeah, I mean, just answer the question, shut up.
• 54:59
  Speaker: The problem is the brain does not want to cooperate with that, hence why I'm so busy doing what I'm doing, because it takes it takes some pretty intense training to rewire a brain.
• 55:11
  Speaker: It really it really, really does.
• 55:13
  William Auten: To fill the void, uh, you could just say, Do you have any more questions?
• 55:17
  Speaker: You could just say nothing.
• 55:19
  Speaker: How about or nothing?
• 55:20
  Speaker: How about that?
• 55:21
  Speaker: Because that's really you gotta you gotta play the game, right?
• 55:24
  Speaker: You you gotta play the game, and it is a game.
• 55:27
  Chantal Roberts: I think I I told you, Bill K went um on your podcast, I did have an attorney do the Columbo method, and he was a defense attorney, actually, who was doing the Columbo method.
• 55:37
  Chantal Roberts: And I had said to him, and I had been retained by by the plaintiff, and I said to the to the defense attorney, uh, do you honestly not understand?
• 55:46
  Chantal Roberts: Or are you just plain stupid?
• 55:48
  Chantal Roberts: Because I don't understand why you don't understand, because your client obviously needs to know that you don't understand insurance law.
• 55:55
  Speaker: I could see you saying that.
• 55:57
  Chantal Roberts: Uh and he stopped, he stopped doing that after that.
• 56:00
  Chantal Roberts: But I mean, I really I was a little confused.
• 56:02
  Chantal Roberts: I was a little confused as to why defense counsel kept asking me, like, what do you mean by that?
• 56:06
  Chantal Roberts: And I'm like, what do you what do you mean by what do you mean by that?
• 56:08
  Chantal Roberts: Because you should definitely know what I'm talking about.
• 56:10
  Chantal Roberts: We should talk shorthand because we're both in insurance.
• 56:13
  Chantal Roberts: It's the plaintiff attorney I have to explain things to.
• 56:17
  Speaker: Yeah, it's it's tricky, and that's where a lot of self-discipline, because it by the way, when you're doing well at that position, this is everything's backwards.
• 56:25
  Speaker: It's really yeah, it's back, it's like you start getting annoyed.
• 56:31
  Speaker: You start getting annoyed because you start to see all the manipulative tactics, and you're like, Good God, like how like you've just answered, like, because you want to you try, it's like if you have teenage kids, it's like, what part of no do you not understand you?
• 56:46
  Speaker: It's like you want to scream at them, and that's where you have to really keep it together because your instincts are like, Well, we're gonna be here all day.
• 56:56
  Speaker: But what what really great witnesses do is again, they're playing, they're in the matrix, right?
• 57:03
  Speaker: And you're neo, and you you know what's going on, and you keep your eye on the ball, and you can have the self-discipline to not fall into any of these, you know, traps that we've been talking about.
• 57:14
  Speaker: And boy, are there a lot of traps, and so you have to be educated on these traps, but there's a lot of traps, and when you can avoid stepping on those landmines and really play the game, you're gonna get through this process.
• 57:27
  Speaker: It's not gonna feel very good, right?
• 57:30
  Speaker: Because depositions don't feel good, but the the goal is number one, you're never you cannot win a deposition, you can lose it in three seconds, but you can never win it.
• 57:41
  Speaker: So you have to kind of let that like that's not a realistic goal.
• 57:45
  Speaker: Your job is to get through it, telling the truth, and then simultaneously not stepping on landmines.
• 57:53
  Speaker: That's a pretty nerve-wracking process, but not letting your emotions get get the best of you, not getting annoyed, always playing the game, right?
• 58:02
  Speaker: And not becoming reactive, no survival mode.
• 58:06
  Speaker: That is no easy task, but very doable, you know, with with the right training and the mind with the right mindset.
• 58:13
  William Auten: Well, speaking of mindset, uh adjusters on a daily basis are not going to be called the depositions every day.
• 58:19
  William Auten: So through uh through their day, uh, what is uh what should they have as a mindset uh when handling their file, making file notes that uh can reduce the risk of a disastrous uh result when they are deposed someday?
• 58:36
  Speaker: Yeah, I think two things uh comes come to mind.
• 58:40
  Speaker: This is by the way, this is just I'm just giving you life advice now.
• 58:44
  Speaker: This is that I don't care whether you're you're an adjuster handling a file, whether you're a nurse, whether no matter what it is, right?
• 58:52
  Speaker: Two things screw everything up in life.
• 58:56
  Speaker: Number one, excessive multitasking.
• 59:01
  Speaker: That this if you multitask excessively, nothing gets done correctly.
• 59:09
  Speaker: A lot of stuff gets done, just not very well, right.
• 59:12
  Speaker: Okay, so to the extent to where you can do things to true, because this society, thank you, thank you, technology, thank you, social media.
• 59:22
  Speaker: It's just our brain has evolved into this very bad multitasking habit, and that's where a lot of mistakes get made.
• 59:31
  Speaker: A lot of mistakes get made.
• 59:33
  Speaker: And so, so not letting yourself fall into that will solve a lot of problems, but it's it's very difficult because you really have to set up your environment and your habits so that you can focus, you're not doing 10 things at once, because that's gonna lead to a lot uh of problems.
• 59:49
  Speaker: And then number two, and uh, these aren't really ranked order, they're both equally as devastating, is um you you can't you can't get emotional.
• 59:59
  Speaker: Emotional emotion kills logic by definition.
• 1:00:03
  Speaker: You can't be emotional and logical simultaneously, and so uh keeping your emotions in check uh is a big big deal.
• 1:00:14
  Speaker: And unfortunately, you know, in our society right now, I mean, we're not even what it's not, it's not even March.
• 1:00:21
  Speaker: And like 2026 is already a nightmare.
• 1:00:24
  Speaker: You can't go one hour without getting pissed off at something or somebody, and it's being like gasoline just keeps getting thrown on the fire, right?
• 1:00:35
  Speaker: So it's not like we're all coming into work every day going, hey, I'm so happy to be here.
• 1:00:38
  Speaker: No, you're coming to pissed off about something, right?
• 1:00:41
  Speaker: And so that you know screws up the way information uh is processed.
• 1:00:45
  Speaker: So multitasking and uh emotions.
• 1:00:48
  Speaker: Uh, if you learn how to be a master in those two areas, your your your life is going to change, number one, but particularly how you do your job, it's gonna be um much more positive.
• 1:01:00
  Speaker: Bravo, great advice.
• 1:01:02
  Chantal Roberts: Absolutely.
• 1:01:03
  Chantal Roberts: Yeah.
• 1:01:03
  Chantal Roberts: So, Bill, okay, before we wrap up, I I want to give you a chance to share what your work you're going on, um, whether that's courtroom scientists, sciences, excuse me, your podcast.
• 1:01:17
  Chantal Roberts: Tell us about your podcast, uh, which is great for adjusters, by the way, because I want y'all to know it is, yeah.
• 1:01:23
  Chantal Roberts: Uh I want y'all to know that I actually had a deposition and uh Bill talks a lot about the reptile theory, which is called something else now.
• 1:01:33
  Chantal Roberts: I've got Apex, I think is what it's called.
• 1:01:35
  Chantal Roberts: The edge.
• 1:01:37
  Chantal Roberts: The edge.
• 1:01:37
  Chantal Roberts: Okay.
• 1:01:38
  Chantal Roberts: Um, like from you two.
• 1:01:40
  Chantal Roberts: Anyway, yeah, for all us Gen X people.
• 1:01:43
  Chantal Roberts: Woo.
• 1:01:44
  Chantal Roberts: Um, and uh I recognized some apex questions.
• 1:01:51
  Chantal Roberts: And you usually, I don't think, would hear it in the claims environment.
• 1:01:57
  Chantal Roberts: You would hear it from like medical malpractice or safety or trucking, which is what you usually would be talking about in that thing.
• 1:02:04
  Chantal Roberts: But I was like, Yeah.
• 1:02:07
  Chantal Roberts: And so I recommend that.
• 1:02:10
  Chantal Roberts: What else are you doing?
• 1:02:12
  Chantal Roberts: Tell us about it.
• 1:02:13
  Speaker: Well, the the podcast is my baby.
• 1:02:16
  Speaker: Um we uh our go our 300th episode will be put out in about, let's see, about 10 days.
• 1:02:25
  Speaker: So uh we've made it, we've made it uh five and a half years.
• 1:02:29
  Speaker: Uh and we have uh naturally a ton of attorneys uh listen to it, a bunch of claims people and adjusters listen to it uh as well, because there is a lot of overlap there.
• 1:02:41
  Speaker: So uh I think you'd like it because we cover a lot of jury, you know, jury things which are really important, cover a lot of witness things that like we've been talking about today.
• 1:02:51
  Speaker: And uh and Chantel, as you know, it's it's just absolutely hilarious and entertaining because that's what it is.
• 1:02:57
  Speaker: You're on it, yeah.
• 1:02:58
  Speaker: That's what it is.
• 1:02:59
  Speaker: So you're gonna laugh a lot and also learn about juries and witness and a lot of neuroscience and stuff like that.
• 1:03:08
  Speaker: So it's a great combination.
• 1:03:09
  Speaker: And then our company, Courtroom Sciences.
• 1:03:12
  Speaker: Um we work all over the country on all different types of uh claims, you know, helping our we work with a lot of insurance companies to help them assess their cases the right way.
• 1:03:24
  Speaker: So we do a lot of jury, like focus group research and stuff like that, so that insurance companies figure out okay, how dangerous is this case, right?
• 1:03:32
  Speaker: Uh my attorney thinks it's worth this, I think it's worth that.
• 1:03:36
  Speaker: So we kind of come in and help uh empirically assess uh, you know, the value of cases, um, you know, uh how dangerous it's gonna be, things like that.
• 1:03:46
  Speaker: And then the other half of what we do is directly working with witnesses prior to their testimony, you know, prior to deposition, obviously, prior before uh trial testimony.
• 1:03:57
  Speaker: Everybody on our staff has an advanced degree in psychology, so we're absolutely not attorneys.
• 1:04:02
  Speaker: Uh we're consulting uh, you know, with attorneys to use psychology to help our clients um get the speaking of edge, getting the edge, right?
• 1:04:12
  Speaker: Uh because it's so it's just so important in this industry.
• 1:04:16
  Speaker: So we're having a lot of fun.
• 1:04:18
  Speaker: The podcast is rocking, and uh I'm out here trying to make a uh I'm very disruptive.
• 1:04:25
  Speaker: That's my goal.
• 1:04:27
  Speaker: I think I'm very, very, very, very disruptive because I want to make a difference, and that's exactly what's happening.
• 1:04:35
  Speaker 3: So yeah, I get it, I get it.
• 1:04:38
  William Auten: Well, it's been an absolute treat to to talk to you today.
• 1:04:41
  William Auten: Well, thank you for having me.
• 1:04:43
  William Auten: Love the love the answers to all these questions.
• 1:04:46
  William Auten: Um I feel like I've learned a lot today.
• 1:04:50
  Chantal Roberts: Yeah, and for our listeners, uh, be sure to like, subscribe, follow, comment, because it helps the algorithm and all that.
• 1:04:57
  Chantal Roberts: And if you don't already, do follow and subscribe to the Litigation Psychology podcast because it is absolutely fantastic.
• 1:05:05
  Speaker: That's on all the major platforms.
• 1:05:06
  Speaker: So if you're a Spotify or Apple person, that's there, our YouTube channel's off the hook.
• 1:05:10
  Speaker: So if you actually want to see my face, but it'll get you to face on two episodes.
• 1:05:15
  Speaker: You go to our YouTube channel, but if you just go to courtroomsciences.com, uh but I just by the way, I just published my 31st article.
• 1:05:23
  Speaker: Bunch of articles on there, the podcast is on there, bunch of resources that um I think will blow you away.
• 1:05:31
  Speaker: So awesome.
• 1:05:33
  Chantal Roberts: Awesome.
• 1:05:33
  Chantal Roberts: Okay, so we're gonna be back in two weeks discussing contractors in the cold because it's still cold.
• 1:05:38
  Chantal Roberts: Why is it still cold?
• 1:05:39
  Chantal Roberts: I don't know, but I'm gonna blame someone.
• 1:05:42
  Speaker: Um it's the groundhog's fault.
• 1:05:44
  Chantal Roberts: Is it Phil's fault?
• 1:05:45
  Chantal Roberts: I'm gonna blame Phil then.
• 1:05:46
  Chantal Roberts: That's what I'm gonna do.
• 1:05:47
  Chantal Roberts: I'm gonna blame Phil.
• 1:05:48
  Chantal Roberts: All right.
• 1:05:50
  Chantal Roberts: So both bills.
• 1:05:51
  Chantal Roberts: Bye.
• 1:05:52
  Chantal Roberts: Thanks for coming.
• 1:05:53
  Chantal Roberts: Had a great time.
• 1:05:54
  William Auten: Thanks for having me.
• 1:05:55
  William Auten: Great to meet you, Bill.
• 1:05:56
  Chantal Roberts: Bye.
• 1:05:57
  William Auten: Take care.
• 1:05:58
  William Auten: Thanks for joining us on the Of Adjusting Podcast, where we talk about life as an insurance adjuster.
• 1:06:03
  William Auten: Hit that subscribe button real quick and tell all of your adjuster friends to check this out as well.
• 1:06:08
  William Auten: For independent adjusting services, go to www.autin.claims.
• 1:06:13
  William Auten: And for anyone interested in working as an independent liability adjuster, go to the contact us tab to join our roster.
• 1:06:21
  Chantal Roberts: So this wraps up another Art of Adjusting podcast.
• 1:06:25
  Chantal Roberts: If you enjoyed this podcast or this episode, please give us five stars and a review.
• 1:06:30
  Chantal Roberts: It does help the algorithm pick us up.
• 1:06:33
  Chantal Roberts: In the meantime, you can contact me at theartofadjusting.com for consulting and training purposes.