VIRTUAL EXAMINATIONS UNDER OATH: CONSIDERATIONS POST COVID-19
Law Offices of Howard S. Vallens
An examination under oath (EUO) is an investigative tool. The insured is placed under oath at the onset of the EUO, usually by a court reporter, and is then asked a series of questions material to the claim under evaluation by a representative (usually an attorney) for the insurer. EUOs are generally treated as a condition precedent to insurance coverage. Nearly all first-party property insurance policies contain a provision allowing an insurer to examine the insured under oath.
The EUO process allows the insurer to gather and preserve information that is primarily or exclusively within the possession of the insured, as well as further investigate issues, address inconsistencies, determine coverage, and/or adjust the claim.
The Logistics of a Virtual EUO
In light of COVID-19, many businesses are working remotely. As a result of the rise in internet speeds and new technologies, more court reporting firms now offer virtual platform options, designed specifically to enable virtual EUOs. Each participant (the insured, attorneys, and the reporter) must utilize a webcam-equipped computer with a secure Internet connection. Audio can be connected via computer or by dialing in via phone. There is no software to install. Participants log in to join a session. The virtual platform allows each person to see and hear the insured, the questioner, and other participants live, just as if everyone was in the same room.
Irrespective of COVID-19 considerations, one reason to conduct a virtual EUO is that it saves time and money. Travel time and costs, including parking and mileage, daily expenses, are minimized. There are costs incurred for the virtual court reporter platform, but they are generally a fraction of the normally incurred travel costs.
Attending a virtual EUO improves efficiency, allows quicker scheduling, and minimizes an attorney’s down time. A virtual EUO can be more convenient, as it is no longer necessary to locate facilities that would be necessary to conduct an EUO in-person.
In addition, while remaining compliant with governmental mandates and health safety issues pertaining to COVID-19, a virtual EUO allows an insurer to timely investigate claim issues, while avoiding the interpersonal contact with a typical EUO.
Moreover, taking a remote EUO allow others, such as adjusters, to easily and contemporaneously view the live testimony from afar.
There are drawbacks to a virtual EUO.
Technology. Technology is at the core of this option. If the internet or Wi-Fi connection is lost, for whatever reason, you are disconnected from your EUO until service is restored. A malfunctioning microphone or video card can also interrupt the proceeding.
Exhibits. The use and control of documents during a virtual EUO becomes a more complicated process. A virtual EUO prevents the attorney from taking documents, handing them to the insured across the table for the court reporter to mark them as exhibits as would be done in an in-person EUO. Advances in technology improve the way exhibits can be used in virtual EUOs. Counsel for the insurer in a virtual EUO can distribute and introduce exhibits in real-time. You will need to determine what documents and exhibits will be used, well in advance of the EUO. This requires the attorney or examiner to additionally prepare for the EUO and anticipate, in advance, what documents may be necessary. Most of the new court reporter platforms allow documents to be uploaded prior to the start of the EUO and during the EUO. During the EUO, the attorney can decide which document to share and at what time. However, practically, this procedure causes the examiner to relinquish some control over the documents and limits some of counsel’s strategic options. In practice, it is harder to refer a witness quickly to a previously marked document. Immediate use of a document, to contradict or impeach a witness, becomes more difficult. If not uploaded in advance (whether shown to the witness or not), the document must be put in a PDF or other acceptable format and then introduced. This could cause a slight delay. If there are only a handful of document exhibits, these can be easily handled with the virtual platform. But if there are more than a handful, sorting through and retrieving the right documents can be time-intensive and frustrating. If the insured is asked to draw a diagram during the EUO or make marks or modifications on an exhibit, with a virtual EUO platform, it becomes more difficult to document and record this. Once the virtual EUO is complete, all marked exhibits will be attached to the transcript.
Witness Impression. Many insurers and attorneys who conduct EUOs believe that being physically present at an EUO and sitting across the table from an insured provides greater control of the witness, including what documents the witness sees and when. For instance, if a witness is acting coy and indicating they cannot locate a document, counsel has the ability to simply reach across the table and direct the witness’s attention to the document. With a virtual EUO, some of this control is lost. Sitting across the table from an insured during an EUO allows you to observe more nuance and detail in person. Nothing quite equals face-to-face in terms of being able to read body language, gauge perspiration level, observe twitching, and being able to stare down an insured with an incredible story.
Monitoring Counsel. Taking a virtual EUO makes it difficult to monitor counsel for the insured. In a remote EUO, the camera shows only the face of counsel on a screen. The counsel for the insured can text or otherwise electronically communicate with the insured during the questioning. This is difficult to police with a virtual EUO.
Prior to conducting a virtual EUO, confirm that the witness and counsel have the necessary computer equipment. Test internet access, audio and video feeds in advance. If you are conducting a virtual EUO for the first time, consider conducting a mock virtual EUO, with others acting as the insured, court reporter, and opposing counsel.
Virtual EUOs are not a one-size-fits-all solution. An insurer has to decide whether an EUO should proceed face-to-face or virtually. Virtual EUOs make sense from a time and cost perspective. Technology has significantly advanced to enable you to manage taking a virtual EUO. Although there are advantages and disadvantages of conducting a virtual EUO, we are bound to see more virtual EUOs, even after COVID-19 plays out. Web-based platforms may never take the place for certain face-to-face EUOs, but this is an additional tool that can be used for the appropriate claim and insured.
Howard Vallens is a property insurance coverage lawyer, licensed to practice law in California. Mr. Vallens has more than 30 years of experience in the handling of first-party property claims and examinations under oath. You may contact him directly at firstname.lastname@example.org. This article should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only. If you would like more information regarding this subject, please contact him at 805-545-9004 or email him directly at email@example.com.