Tips for taking examinations under oath of insureds or claimants

When engaged in the process of managing a claim, it is not at all uncommon for claims professionals to take sworn statements — or even unsworn statements — either from their insured or from claimants against their insured. An examination under oath (EUO) is generally done pre-suit in an effort to determine whether or not there’s coverage — or whether or not a case can be resolved before it goes into litigation.

Much like a deposition, an EUO is conducted to gather information, including finding out what you don’t know and confirming what you think you know. While there are many similarities between an EUO and a deposition, they serve different purposes. Unlike a deposition, which is part of the litigation process to help an attorney establish their case and discover details, EUO questioning is conducted to verify the legitimacy of a claim to help evaluate and adjust the claim.

Taking a sworn statement is a critical task that requires careful preparation and attention to detail.  When an EUO is conducted, the witness’s statements are taken in a question-and-answer form in front of a court reporter, who transcribes the questions and answers. Questions may be procedural or factual in nature, often centering around the history of the policy or the claim, understanding of the coverage issues, involvement with the claim, liability, damages or how similar claims have been handled.

For those who find themselves in the position of needing to conduct an EUO for the first time, as well as for those who simply want to get better at doing so, here are ten tips that will help you effectively take a sworn statement:

Prepare in advance.

Familiarize yourself with the case and relevant facts before the statement. Gather any necessary documents or evidence that may assist in clarifying the issues. Running background checks/reports, checking prior claims and court filings, and searching social media outlets can often provide very useful information.

Establish rapport.

Create a comfortable and professional atmosphere to help the witness feel at ease. This will encourage them to provide accurate and detailed information and will help the process to run smoothly.

Explain the process.

Briefly explain the purpose of the sworn statement, the oath the witness will take, and the importance of providing truthful information at the beginning of the session, taking the time to address any concerns or questions the witness may have. Explaining these things often helps to ease a witness’s stress and anxiety.

Use open-ended questions.

Ask open-ended questions that encourage the witness to provide detailed responses. This helps avoid leading or suggestive questions that may compromise the statement’s integrity. In other words, the witness should be the one testifying and explaining the information, not you. If the witness is answering with a simple “yes” or “no”, you may be the one actually testifying.

Actively listen.

Pay close attention to the witness’s answers, non-verbal cues, and inconsistencies. Listen attentively to ensure you capture accurate information and follow up on any relevant details. While it may be helpful to have an outline of topics or questions to follow, use it loosely and allow yourself to go “off-script” to follow up on an answer that may go astray from your outline or simply require additional clarification.

Maintain objectivity.

Remain neutral throughout the process, maintaining a professional and unbiased stance. Avoid inserting personal opinions or judgments that could influence the witness’s responses. Try to put yourself in the shoes of the witness and/or place yourself at the scene or in the situation at issue to better understand the witness’s perspective. This should help you to ask better, more detailed questions.

Record the statement.

Use a reliable method to record the statement accurately. A professional stenographer is preferred, but written notes, audio recordings, or video recordings may be acceptable depending on the requirements and legalities of your jurisdiction.

Clarify ambiguities.

Seek clarification when necessary to ensure you fully understand the witness’s statements. Ask follow-up questions to resolve any inconsistencies or unclear information. Vague responses will be susceptible to multiple interpretations and explanations. Don’t be afraid to politely and professionally “pin down” the witness to a clear, unambiguous answer.

Encourage truthfulness.

Remind the witness of their oath and the importance of providing truthful information. Emphasize that any deliberate falsehood may have legal consequences. If you believe a witness is being untruthful, and it works to your advantage to “impeach” them, make sure the witness fully commits to their response before you show them a document or other evidence which contradicts their testimony. Then make sure to mark and attach your impeachment evidence as an exhibit to the transcript of the statement for a complete “record”.

Review and finalize.

After completing the statement, review it for accuracy and completeness. Make any necessary corrections or clarifications, and have the witness review and sign the document if required. Check local jurisdictional requirements regarding providing the witness with a copy of the statement, if requested, as well as the implications of doing so.

As is the case with all legal proceedings, please also note that it is crucial to consult and comply with the specific legal requirements and guidelines established by your jurisdiction when taking sworn statements. It’s always advisable to double-check these guidelines, particularly if it has been some time since you last took a sworn statement.

EUOs are important tools for insurers and claims handlers to cross-examine the proofs of loss to avoid potential fraud and to better understand claims details, making it essential that claims professionals have a full understanding of both how the process works and how to maximize the opportunity of taking a sworn statement. The more prepared you are going into EUO proceedings, the more efficient and effective the process will be.

Fred Fein (fred.fein@clydeco.us) is a partner with Clyde & Co.

Related:

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Insureds’ materially false statements can doom insurance coverage for their claims