I. Background:   What is admissible evidence vs. inadmissible evidence?

Litigation is a two-part mission.  First, you are trying to prove your case with evidence.  But that alone is not enough.  Because not all “evidence” is created equal.  For instance, a thief who is on trial for stealing a watch cannot get his friend to testify at trial that the Plaintiff told the friend that he wanted to gift the watch to the thief.  This is one simple example of hearsay.  

To protect the legal system from certain abuse such as this one, litigators are required to comply with a special code of Evidence.  This code dictates what evidence comes in and what evidence stays out at TRIAL.  In other words, a perfectly good case could be completely destroyed if the opposing party manages to convince the judge (based on the evidence code and supporting case law) that the proposed evidence does not comply with the rules.  This is known as “admissible evidence vs. inadmissible evidence”.  

This leads to the second part the mission: keeping your evidence in (favorable – good) and finding ways to keep your opponent’s (unfavorable to your case – bad) evidence out of trial.  Logistically, a party must file a motion in limine to request the judge keep out certain evidence out of trial.  The judge, who is the gatekeeper of evidence, can deeply influence a case by simply deciding which evidence that can come in or stay out. 

Here – we discuss whether Examination Under Oath (EUO) testimony is admissible at trial.  Since it’s the insurance company taking the insureds’ EUO, generally this is the type of evidence the insured would want to keep out (or limit its purpose).   The obvious risk is the insurance company can use your testimony (if you weren’t prepared at the EUO) against your deposition if you were inconsistent.

So is it admissible or inadmissible?

II. EUO testimony is likely admissible evidence:

In Florida, a federal court denied an insured’s motion in limine to preclude the EUO testimony of its corporate representative from trial under the Federal Rules of Evidence 801(d)(2).  However, the court issued a preliminary ruling finding that the EUO could be used as evidence and for impeachment purposes at trial.  The case name is Royal Bahamian Ass’n, Inc. v. QBE Ins. Corp., No. 10-21511, 2010 WL 4123989 (S.D. Fla. Oct. 20, 2010). 

III. Takeaway:

While different facts of your case and a different type of evidentiary challenge could still drastically impact the admissibility of the evidence, this case is a good indicator that EUO testimony is more-likely-than-not admissible.

To minimize your risk at trial, you will be better positioned if you retain an attorney or public adjuster prior to the EUO.  While they cannot directly assist you in answering the questions, their presence and preparation will help you avoid falling for common question traps.  Remember, an insurance company will try to “pin” you on your testimony, which can result in certain legal consequences.  A little preparation in providing favorable testimony could actually strengthen your claim.

For a better understanding of how your EUO testimony will affect your claim, please review our other articles on this topic on the main page.