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our probing, for the most part grilling a witness is reserved
for cross-examination in the court room where dramatic
affect impresses jurors. I know that I have set a fruitful EUO
environment when at the conclusion the witness breathes a sigh
of relief saying, " that wasn't so bad, " meanwhile I have secured
the necessary testimony to prove the coverage defenses.
A definite advantage to remote EUOs is saving expense on
travel time. Out-of-town insurance professionals also seem
more inclined to attend when EUOs are set up remotely for
everyone, even though the same opportunity exists for them
to attend electronically when the attorney and witness are in
person together. Whether the witness and I attend remotely
or in person, insurer representatives are always encouraged to
attend at least by electronic means.
To me, the benefits of conducting an EUO remotely are usually
heavily outweighed by the advantages of an in-person meeting.
Among other things, EUOs conducted remotely significantly
reduce the opportunity to assess non-verbal communication; some
researchers opining that 55% of communication is non-linguistic.
Being present only remotely, I am unable to feel the witness
nervously bouncing her knee up and down under the table. I am
not able to watch him coming and going and during breaks. I always
try to have the witness position the video camera so I may see their
hands (i.e., making fists, wringing their hands, tapping, playing
with a pen, etc.). But for the EUO facilitator who allows witnesses
to appear by video on a smartphone, this observation will be lost.
Sequestering witnesses during EUOs to assure independent
testimony and to test for inconsistencies is of paramount importance.
Most policies require EUOs to be conducted while not in the
presence of any other insured. During a remote EUO we must
trust the witness that no other insured is present or listening. The
facilitator may ask the insured to pan the room with their electronic
device but there is no guarantee someone is not surreptitiously
present or may enter later. It is also more difficult to assure that the
witness does not have the electronic means to record the EUO, to
rehearse testimony with another witness who may be scheduled on
a consecutive day due to the duration of the meetings.
Again, for facilitators who permit witnesses to appear through
smartphones or smaller iPads, there is no assurance that the
witness may not be referencing notes or documents that the
facilitator is unable to see (thus the importance of being cognizant
of their eye movement). When claims involve the possible
exaggeration of personal property damages, I always test the
veracity of the inventory by asking for ages, places of acquisition,
values, etc. without allowing the insured to look at the prior
submission. Allowing for a natural standard of deviation, the
inventory and testimony should be substantially consistent and
concerns with the truthfulness of the claim arise when there are
significant inconsistencies. This art may be prejudiced when
conducted remotely.
Other issues with conducting EUOs virtually may include the
attorney for the witness signaling or silently coaching, if not visible
within the monitor (make sure they are). The chance of technical
or electronic issues exists with remote EUOs (i.e., poor audio or
video quality, the witness not holding their device steady, battery
life issues, power outages, interrupted internet service, etc.). Despite
my instructions advising witnesses that they must be prepared to
remain in a stationary location, one witness decided he was going
to drive to work (resulting in me interrupting the EUO until he was
stationary again) and another taking his dog outside to go potty
(resulting in a break time).
Although witnesses are requested to submit documents in advance
of the EUO, they sometimes bring them to the meeting. Examination
of the records and marking them as exhibits then becomes an issue,
which may be overcome but it is certainly not as simple as when
meeting in person. Mass quantities of exhibits which may exist in
some cases such as complex commercial losses require detailed
management and pre-planning when meeting virtually.
EUOs in arson investigations often necessitate requesting
witnesses to draw a floor plan indicating, for example, where
electrical outlets, switches and fixtures are located. Although not
impossible when conducted remotely, it certainly is more onerous
and requires some aforethought.
Whether an EUO is conducted remotely by virtual electronic means
or in person is obviously the ultimate decision of the insurer-client and
requires consideration of the totality of the individual circumstances
and merits of the particular claim, as well as the condition and desire
of the witness. Both methods have certain advantages and may be
managed successfully. However, as the black cloud of COVID-19
begins to lift, my vote is for generally returning to in-person EUOs,
believing this to most often be the better of the two practices.
I am looking forward to transitioning to my new employment as a
writer for the very popular, award-winning and most-watched sitcom
ever since " The Office - Special Investigation Unit. " I have a lot more
stories for additional episodes. Some are more appropriately told over
a pint when I see you at a seminar sometime - I'll buy. Now I just need
a producer and a director. Let me know if you have any acting ability
and you can play yourself in the episode created based upon the crazy
claim scenario you handled. I can't wait for the pilot. Scooch over and
hand me the popcorn!
Scott D. Storm is a member of Hurwitz & Fine, P.C., in its Insurance Coverage
Practice Group. Scott has over 20 years of legal experience handling insurance
coverage and defense litigation and special investigation matters, with
exceptional experience conducting examinations under oath. He is admitted
to practice in New York and Pennsylvania. He has been selected for inclusion in
the 2014 through 2020 editions of New York Super Lawyers - Upstate Edition.
You may reach Scott with thoughts or questions about his article on his cell at
(716) 220-1478 and at

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