The odd proclivities of our system allows claimants and their attorneys to stall and delay resolution of claims presents difficult challenges for adjusters, risk managers and defense attorneys. Right now, we have a challenging and major fight claim our client wants to defend and win. We also have numerous accident disputes where supervisors and other co-workers need to be called to refute the claim.
In such claims, if the claims are not going to be tried in the near future, our defense clients are at a dramatic disadvantage in defending either claim. The problem they face is claimant has a strong chance of being around when the matter is tried. Claimant’s counsel have every option to stall and delay the hearing, as many do in this state.
The defense disadvantage is our witnesses may move on to other companies and other pursuits, sometimes in other states. A related disadvantage is getting a defense witness to return to testify when they are no longer employed by our clients. You can have witnesses served with a subpoena. That doesn’t mean they can’t actively or passively “forget” what they knew at the time of the four and five year old event.
Witnesses do that all the time to avoid being called. Many witnesses also don’t want the controversy and stress of testifying under oath with claimant glaring at them long after a nasty claim has settled down.
In our view, sometime the best and maybe the only way to protect our clients in these sort of claims is to get
· Recorded statements of our witnesses and then follow up with
· Videotaped evidence depositions
If we do so, your record is generally protected—the problem with getting depositions of defense witnesses in advance is they can’t directly rebut later testimony of claimant.
And claimant’s counsel will also know precisely what the defense witness said in the videotaped evidence deposition and could therefore “plan” their client’s testimony around the deposition testimony if possible.
But in our minds, it is still way better than waiting and seeing what happens to our defense witnesses in two or three years after the claim has been filed and allowed to badly linger.
And we also feel some claimant attorneys might drop claims if you do a solid job of rebutting them and documenting the rebuttal well prior to the full hearing.
If claimant’s counsel won’t agree to a videotaped evidence deposition, you have to file a petition known as a dedimus potestatem. If you need details, send a reply.
Please feel free to send your thoughts and comments.