Happy Friday, dear readers!
Your humble blogger brings you an interesting new case today – one that was brought to my most humble attention by the good folks over at Lexis – electronic testimony by the adjuster at deposition.
Often enough, adjusters handling California cases are in other parts of California, or even other parts of the Union. So, if you’re a sly and sneaky applicant’s attorney, you might consider finding some pretext for a deposition of the adjuster. After all, a day out of the office, whether spent testifying or traveling to testify, can be brutal – adjusters already have to juggle enormous case files, phone calls, e-mails, and ready long and pointless blog posts from humble bloggers.
But, let’s remember, we no longer write our briefs by scratching and inked feather upon parchment lit by candle light – we copy-paste our pleadings on brightly lit computer screens. We no longer seal our declarations with a melted wax and our emblems, but with proofs of service signed under penalty of perjury. And, of course, we no longer have to appear for testimony in person, we have Skype, Viber, and a whole host of other software that allows testimony by video.
What reason is there to require in-person testimony? We even allow applicants to testify via Skype when they’ve been deported to Mexico!
In the panel case of Simmons v. Just Wingin’ It., Inc., applicant’s counsel sought to have defendant’s adjuster appear in person to testify at trial. Defendant sought removal, arguing that requiring a claims adjuster who lives in Illinois to appear in person for trial would visit substantial prejudice upon defendant, especially when CourtCall and video conferencing are available.
In reversing the WCJ, the commissioners wrote “[w]e agree with defendant, and see no reason not to use the alternative means of obtaining the claims adjuster’s testimony.” The WCJ’s order was rescinded and the adjuster was allowed to appear for trial remotely.
From the WCJ’s report and recommendation on removal, it appears the primary concern with having the adjuster appear remotely is the interference with the Judge’s ability to ascertain credibility. It is not clear, however, if a video appearance would be sufficient for a judge to determine credibility as a witness.
My dear, fellow defense attorneys – would you be content to take a deposition over video conferencing? Or is there something that makes the difference by doing the deposition in person?
In any case, if this panel opinion becomes the trend, it might take some of the teeth out of the applicant’s demand to depose the adjuster. Have a good weekend!