We explored the nature of depositions in my last post. If you haven’t read “What is a Deposition?” yet, you might want to start there and then come back. The impact of this information will be greater if you grasp what that post has to give.
One Little Caveat: This post goes out to the physician or other healing professional who has become a defendant. It is not intended to address the needs of expert witnesses.
Tip 1: Follow your lawyer’s lead
The notion of a deposition may feel entirely foreign to you. To your lawyer, it is familiar ground. Invite your defense attorney to be your guide.
Expect that the plaintiff’s attorney will ask you many questions at deposition, questions you will be required by law to answer. One of your defense lawyer’s primary jobs is to help you anticipate the sorts of questions you may be asked and rehearse with you the most effective ways to answer them truthfully. Getting you comfortable may require hours of practice. Trust me, every minute is worth it! If they think you’re ready and you think you’re not, ask for more.
Your counsel can best assist you if they know everything you know about your case. Inform them fully. Obviously, a medical record doesn’t capture every detail of an encounter. If you remember features of the interaction that are not recorded there, share them with your attorney before deposition, even if some feel awkward or embarrassing. Undoubtedly, the plaintiff’s attorney has heard all about it. By sharing everything you know with your defense lawyer, you provide the raw material they require to help you find your most legitimate defense.
Prior to your deposition, review only those documents provided by your lawyer for your review and nothing else, says Dirk Riemenschneider, JD. This may well be the medical record alone. You will almost certainly be asked under oath what you have reviewed in preparation for the deposition; simplify your testimony and your life by deferring to your lawyer in this regard.
Tip 2: Be truthful
I cannot overstate this point!
Remember, you will be under oath. As of now, you have been accused of a “breach of contract,” which is not a crime. Perjury, on the other hand, is a felony, and not covered by your malpractice insurance. No need to risk ramping things up.
Furthermore, the transcript becomes part of the legal record. It will come into play if your particular case falls among the 10% that proceed to a courtroom. In the setting of a trial, sections of a deposition are commonly read aloud to the jury, sometimes because a lawyer believes that the person on the stand is testifying differently than they did at deposition.
For a plaintiff’s lawyer, nothing is a bigger bonanza than the opportunity to make a physician-defendant appear untruthful. Why? Because juries rightly expect honesty in doctors. The truth -- even when it’s troublesome -- is your best defense.
Let me forewarn you: plaintiff’s lawyers often engage in tactics which feel distasteful at deposition. Sometimes, that inspires fear, and fear may prompt us to do things we otherwise would not. It may take courage to consistently tell the truth as best you can in response to their questions. I suggest you tell yourself that their karma is their problem. Your clean conscience and your high integrity go home with YOU at the end of the day. What’s more, juries often see that high integrity and respect it in us.
Tip 3: Slow down
This one’s harder than it looks. Deposition make our adrenaline pump -- not exactly the physiologic state that inspires one to slow down!
Try to breathe after each question, make sure you understand it, formulate your thoughts and then answer. As Riemenschneider points out, “Silence does not appear on a transcript.”
If a question is not completely clear or might be open to multiple interpretations, simply request that it be rephrased as many times as needed until you are confident you have a question you can answer directly.
Don’t let any shenanigans designed to suggest that you are wasting time or being a deliberate pain-in-the-you-know-what throw you off your course. At the end of the day, you are the only one in the room under oath. Bad questions will not be read aloud in a courtroom; bad answers might.
Tip 4: Be brief
In “How to Answer Questions at Your Deposition”, David Grappo emphasizes this: once you have understood the question, make sure you answer ONLY that question. If it is a yes-or-no question, “yes” or “no” is a perfect answer IF one of those is accurate. If not, then make that known, and wait for a better question.
Finding the right questions is the plaintiff’s lawyer’s job; do not do it for them. If they cannot find the question they want, or do not ask you for the details you would like to give, let it go. Your role is to truthfully answer the questions you are actually asked. Less said now is less to trip over later.
If the plaintiff’s counsel repeats a question you answered fully the first time, simply repeat your first answer or indicate that you stand by it. You are under no obligation to further elaborate. While the plaintiff’s lawyer may hope you will volunteer additional information, you are not there to educate or persuade them as you would a patient. You will not win them over! Answer only the precise questions you are asked.
Tip 5: Do not speculate
Attorneys who work in the world of medical malpractice litigation may surprise you with how much medicine they have learned in the course of their work. That is not the same as going to medical school.
The plaintiff’s attorney may ask questions which you cannot answer with certainty, hoping to find in your speculation the theory as to what happened which will win their case. You are not there to resolve that dilemma for them, and in fact, I consider it an imposition for them to ask you to do so. It is truthful and appropriate to answer questions like, “What do you THINK happened?” with “I don’t know,” if in fact you do not know with certainty.
On both sides -- plaintiff and defense -- attorneys hope to learn things from you which will enable them to win their respective client’s case. You, however, are not on both sides of the case. You are the defendant. Discuss theories with your own lawyer; discuss facts with the opposing counsel. Even if you still care about the welfare of your former patient, at the moment of deposition, you are legally and ethically entitled to your best defense.
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Just a reminder: I am not a lawyer, nor should my posts be considered legal advice. Many thanks to Dirk Riemenschneider, JD, Health Group Practice Leader at Buckingham, Doolittle, Burroughs, Cleveland, Ohio, for reviewing this post.