Handling Insurance Cases – 8 – Witnesses

First party insurance cases are unique.  Filing complaints with the Texas Department of Insurance is usually a waste of time unless the complaint has something to do with a criminal act on the part of the insurance company.  The Texas Insurance Code, Chapters 541 and 542, among others are helpful.

But if no other recourse works and an insured has to hire a lawyer, file a lawsuit, and try the case, witnesses make a big difference in the outcome.

The most effective trial attorneys do not waste time badgering witnesses or asking irrelevant questions to set up their points.  Counsel should know the case inside and out and be prepared with the key points you need from each witness.  Having a working knowledge of the exhibits and deposition testimony in the event you need to impeach a witness is imperative.  Further, it is important to keep the potential jury charge in mind when determining the points to discuss with each witness.  When examining a witness or expert from out of town, counsel should plan to have them on call and prepared.  An out of town witness should arrive a day prior to their testimony to ensure there are no issues with travel and that there is time to go over testimony in a controlled setting.  Scrambling to rearrange witnesses due to delay can negatively affect the way the case is presented.

I.  Witness Order – Because every case is different and every witness brings a different set of facts to the table, counsel should take the time to analyze how to tell the story.  Sometimes it is best to start with the corporate representative in order to establish the policies and procedures that should have been followed.  Other times, leading the plaintiffs can set the tone as to why they believe they were wronged.  As discussed in earlier posts, deposition testimony will provide an idea of the set of facts to which each witness will testify, thereby providing a basis to set up the witness order.

II.  Be Brief – A dead horse should not be beaten during trial, and trial witnesses should not be treated the same as they would be during a deposition.  Counsel has the ability to set the pace of the trial during the case in chief and a jury will appreciate the fact that their time is not being wasted through repetition or irrelevant questions.  Because witnesses order and direct testimony templates should be determined ahead of trial, counsel should stay with the game plan to get the evidence needed from each witness.  If the defense does an effective cross-examination of a witness, a quick and effective redirect can be just as powerful as the initial direct.

III.  Cross-examination – Any witness opposing counsel calls at trial should have been disclosed by the defense and deposed prior to trial.  Therefore, experienced counsel will anticipate the majority of facts or evidence their opponents will seek to obtain from their witnesses on direct-examination.  Counsel should be ready to deflate some of the gains the defense made when the witness is passed.  Visual evidence and photographs, whenever possible, will be effective in helping a jury retain the information.  The most effective cross-examinations in trial are direct and clearly articulated.  The goal is to neutralize the witness.