SIU Today Summer 2021 - 13

repeatedly declining to answer my questions by saying " [Insert
Insurance Company Name] does not insure that question. " He
would not explain what this meant but I suspect he was trying to
object based upon his perception of relevance. After answering
approximately 25 questions in this manner, he grew tired of it and
explained that he was just going to say " A, " which he defined to mean
" [Insert Insurance Company Name] does not insure that question. "
After saying " A " in response to maybe another 30 questions or so,
he elected to leave in a tirade of f-bombs, despite me warning him
as he walked out the door that if he failed to complete his EUO he
would forfeit coverage for the claim.
One insured had Aircophobia (fear of air conditioning). I conducted
his EUO in my firm's conference room on a very hot summer day,
a/c off and shades drawn until the stenographer threw up her hands,
declaring it too hot to continue. We had to resume very early the
next morning before the afternoon heat set in. By the time the court
reporter threw in the towel that day we were all soaked with sweat
and cantankerous from being boiled alive.
IT IS IMPORTANT TO ESTABLISH AND MAINTAIN
CONTROL OVER THE EUO ENVIRONMENT
I have so many storylines for our future show. However, my favorite
occurred recently during a remote EUO conducted through Zoom
conferencing. Despite always securing an insured's agreement at the
beginning of a virtual EUO that he/she will remain in a stationary
location for the duration, the witness will sometimes become
restless and begin to mill about. Walkabouts are usually remedied
by " taking a break " until the insured agrees to remain seated again.
On this occasion I was proceeding with a line of questioning that
I did not want to interrupt when the insured walked into another
room and sat down. I considered the background as well as his
countenance and then asked, " Mr. [Insured] are you going to the
bathroom? " To which he responded, " yeah, but I can still answer
your questions, keep going. " Indeed, he was the one " going. " His
attorney, a new and very young associate, turned 50 shades of red
not knowing what to do.
I have heard it said that winning the game is not determined by
the cards you are dealt but by how you play your hand. My gut
instinct was to maintain control of the environment by taking a
break. However, this insured had proven himself to be very street
smart, testing my fortitude through his aggressive demeanor and
answers, hoping to abbreviate our meeting. I suspect he thought
this jaunt to the loo would rattle me but in w0 years of experiencing
more intimidating insureds and situations, this was nothing more
than amusing, so without hesitation or any response I continued
with the EUO. As minutes passed, he actually appeared to become
embarrassed as he sat there answering questions until he got up
and went back into the room he was in prior to the unannounced
potty break - without washing his hands I might add (ew gross). His
aggression substantially subsided after this little standoff. Somewhat
saddle broke and appearing dejected, he came across as accepting
the fact that he was unable to truncate our meeting. We finished
without further skirmishes. One thing became clear - there is no
need for bathroom breaks anymore during virtual EUOs.
I learned early in my career the importance of establishing and
maintaining control over the EUO environment. When I was a
rookie, I made the mistake of conducting EUOs in the offices of
insureds' attorneys. One was in a conference room with a window
situated several feet from a frequently used elevated train track.
Another firm's " conference room " was a table in a space shared by
support staff with administrative assistants interrupting, delivering
messages and asking the attorneys to sign papers, etc. Now EUOs
are only conducted in my office or a neutral location.
ADVANTAGES TO CONDUCTING EUOS REMOTELY
INCLUDE SAVING EXPENSE AND, FOR SOME, MORE
RELAXED ATTIRE
The advantages of conducting EUOs electronically include, for
some, more relaxed attire -- business casual. I continue to prefer
that my appearance reflect the importance of the meeting, wearing
a tie and jacket. But since no one can see us from the waist down,
sweats or shorts remain viable pants options.
It may be argued that witnesses are more comfortable answering
questions from their own home and, therefore, naturally provide
more information. Perhaps, but my experience is that the witness's
comfort level has more to do with the style and skill of the
facilitator conducting the EUO (attorney or SIU investigator) in
questioning the witness. In my early days I was more aggressive
and interrogative, questioning witnesses with almost a righteous
indignation, extracting information like an oral surgeon pulling
wisdom teeth. But the age old adage has since proven true to me
time and time again: you attract more flies with honey than vinegar.
At the commencement of an EUO most insureds are very guarded,
their only experience with such meetings having been watching
witnesses torn apart by shark attorneys in TV court room dramas.
I have learned that demonstrating empathy and kindness quickly
puts the witness at ease. Sometimes I will even say something like,
" this is not like a TV trial cross-examination, I just need to talk to
you and ask some questions about the incident. " I smile, sit back,
appear relaxe,; offer breaks, water and coffee, and inquire about their
comfort. Eventually they calm down, start talking and the more they
talk, the more evidence I obtain. It is all in the presentation as to
how the witness responds.
WHAT TECHNIQUES ARE EFFECTIVE FOR YOU IN
DRAWING OUT MATERIAL TESTIMONY?
I begin EUOs with easy questions, breaking the ice and
establishing rapport. I reserve the most sensitive subject matter
and questions regarding inconsistencies for the start of the
fourth quarter. Our purpose is to investigate and evaluate - to
ascertain the facts necessary to resolve the coverage issues
while making a record under oath. We do this by asking
questions and questioning the answers. Although all EUOs
have moments where we need to be particularly assertive in
SUMMER 2021 | SIU TODAY 13

SIU Today Summer 2021

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