A deposition is not to find out the facts. That is what the medical record is for.
A deposition is not a battle. That is what the trial is for.
A deposition is a job interview. You are being interviewed for the position of “defendant.” Your own attorney is as much involved in that as the plaintiff’s attorney is because by the time that you are deposed your carrier has already made a preliminary determination, based on its own experts’ analysis of the case, as to whether it will settle, and if so, for how much. A weak performance at your deposition will make the carrier want to cut its losses as to you.
Your deposition is your chance to lose your case before it has started.
Here are some simple steps to avoid that:
Review the chart thoroughly and create a summary.
Do this to refresh your memory as to the medical facts and as to whom you spoke with about the case. Most plaintiffs’ attorneys set up their case analyses in the form of timelines. The notes that you take during your chart review should be in this form as well.
Educate your attorney.
Plaintiff’s attorneys will know their cases inside and out but many defense firms will send a lawyer with little familiarity about the case to cover a deposition. You therefore want to make sure that your lawyer has the facts at his or her fingertips.Put together a short presentation in layman’s language that summarizes the medical facts, including the standard of care, and review it with your attorney. This will also help you clarify your own thoughts and keep your testimony clear and to the point. This material is also privileged, so be honest about the medical facts even if they do not favor you.
Relax on the night before your deposition.
Watch a TV show or a movie that you really like, or read a good book, and then get some sleep. Do not go over your records. There is nothing new that you will come up with that you never thought of before and you need to be rested and relaxed for the next day’s work.
You will not intimidate the plaintiff’s lawyer if you show up in Armani and showing up in jeans and a tee shirt to show your disrespect for the proceeding just makes you look like a jerk. Business casual is appropriate – enough to look professional but comfortable enough so that sitting for several hours is not a strain.Two gender-specific points: Men should avoid ties unless they are very comfortable with them because the moment that you loosen yours you have shown the point at which you weaken. Women should avoid jewelry that is jangly or that you will tend to fiddle with because it will be a distraction.
Choose a site that works for you.
Usually, your deposition will be held at your defense firm’s office. The theory is that that is “home turf.” However, if that is very inconvenient for you but the plaintiff firm’s office or the courthouse is nearby, tell your lawyer that and ask if you can have it done there. You will likely be accommodated because no attorney wants a client who had to get up very early for an aggravating commute when they could have had one who is rested and calm.
Before you begin, say to yourself, “This is not personal.”
That is because it is not. The plaintiff’s lawyer is doing his or her job and you are there as a participant in a series of events. If you go in feeling persecuted or in a state of enmity, your testimony will reflect that and not the facts of the case.
Do not try to just say “yes,” “no,” and ‘I don’t know.”
This is not how human beings communicate. You will not be able to do it past one or two tries and trying to keep it up will have you focusing more on your phrasing than on what you need to say. You may think that you are making it more difficult for the plaintiff’s lawyer but remember that they have the chart while you are only preventing yourself from presenting a clear explanation of that chart. Just speak naturally while staying succinct.
Do not answer more than what the question asked.
It is human nature to launch into a narrative to defend yourself. It is also the surest way to say something that you will later regret. Instead, listen carefully to the question and answer it only to its point.
Take a breath pause before each answer.
This gives your attorney a chance to object. Once you have begun to speak that is no longer possible and the only alternative would be to try to have your answer stricken by bringing a Motion – and those are never granted…
If your attorney has objected, stop talking.
Never say, “No, I want to answer that,” no matter how strongly you feel about the matter. If you believe that answering is to your advantage, ask to stop and have a private discussion with your attorney about it. Answer only what you are sure of.
Another normal human impulse is to try to fill in gaps in memory. However, the statements in a deposition transcript can be used at trial, so if you are not sure of something say so. You may then be offered a document and asked if it refreshes your recollection. If it does, fine. If not, then say so.There is another aspect to limiting your answer to what you know for certain – trying to fudge if you do not know an aspect of medicine. This is the worst thing that you can do. You will make errors and they will be used against you at trial. If you do not know something, say so – it is far less harmful than saying something provably wrong that will be used later to impugn your competence.
Don’t try to convince the plaintiff‘s lawyer that you are right.
The case will not go away based on a deposition unless you were only included because your name was in the chart and the deposition reveals clear non-involvement. Aggressively pitching your own side, however, will change nothing as far as your continued inclusion in the case if you were actually involved. What it will do is make you sound defensive, which would be a disaster at trial and so is something that both attorneys are looking for in you. Just present the facts of your involvement clearly and without personal editorialization.
Don’t try to be a lawyer.
If a question asks for information that is not appropriate or evidence is proffered or demanded that is not appropriate, your lawyer will deal with it. If you believe that you are being asked for something that is not legally acceptable and your attorney has said nothing, do not challenge the question on the record. Just ask to stop and then consult with your attorney privately.
Speak to your lawyer only in confidence.
What you say to your lawyer is privileged unless you do so in a way that breaches that. If you need to speak to your lawyer during your deposition, either whisper to him or her behind your hand, or ask to step outside, and then speak only in very low tones.Do not write notes to your lawyer – they are potentially visible to others and therefore can breach the privilege. Do not talk about the case in a public area in the building where you are deposed and if you go to lunch with your lawyer do not do it in the restaurant either because you do not know who is at the next table.
Be courteous. The parasite slime-sucking lawyer that you believe that you just pinned with a nasty retort or a smug rebuttal is actually now the happiest guy or gal in the world because they just found out how to make you look terrible in front of a jury. Meanwhile, your attorney is mentally composing a memo to his or her senior partner about how you are likely to antagonize a jury and so settlement should be offered. On the other hand, maintaining a reasonable demeanor and being standardly courteous makes your personality a nullity in the assessment mix and brings you back to where you want to be – discussing the facts.
Make sure that you review your deposition transcript.
Words like “not” often get left out by the court reporter, thereby completely changing an answer. Medical terms are also often transcribed very inaccurately. You are not permitted to re-write testimony substantively because you wish that you had said something differently but you can make necessary corrections and you should ask to do so. If your case goes to trial any inconsistencies between what you say on the stand and what you said at your deposition will be used to impeach you. You therefore want to make sure that the transcript reflects what you actually said.
Be honest with your own attorney.
If you made an error, tell your lawyer. He or she already knows it because their own experts have reviewed the case, but if you are open about it then you can discuss how best to present your case at the deposition. Remember that whatever you tell your attorney is absolutely privileged.
…and then relax!
You mastered the interview.
You explained the facts well to your adversary.
You inspired confidence in your advocate.
You created a document that presents the matter as you want it presented.
Faced with a chance to lose your case from the start, you have instead given your attorney powerful tools to work with on your behalf.
Well done, Doctor!
Dr. MedLaw, MD, JD, is a board certified radiologist and a malpractice attorney.