Just a reminder: I am not a lawyer, nor should my posts be considered legal advice. Many thanks to Dirk Riemenschneider, malpractice defense lawyer in Ohio, for reviewing this post.
For a physician or healer in the midst of a medical malpractice lawsuit, a deposition is an important milestone. Although it may feel mysterious and intimidating, a deposition has a very specific purpose and is governed by very specific rules. While it is not your job to understand all those rules -- that’s one of many reasons why you have a defense attorney -- I believe that it will make your life a little easier to have a basic understanding of what to expect from a deposition.
What is the Purpose of a Deposition?
Not long after a lawsuit begins, it enters an information-finding phase called “discovery.” Lawyers on both sides get down to the business of discovering any and all data relevant to the case, according to an article by Paul Bergman, Professor Emeritus, UCLA Law. Several tools rest at a lawyer’s disposal for this purpose. These include obtaining medical records, creating and responding to written questions and answers called “interrogatories,” and depositions, among others.
Because the process is often complex, the defense attorney’s work in the discovery phase is key. In order to engage diligently in discovery on your behalf, they must:
Firmly grasp the “rules of evidence” governing which data is admissible and which is not, as well as the legalities governing the proper means for collecting it;
Engage strategically in the process of uncovering all of the pertinent information;
Protect you from the effects of potential attempts on the part of the plaintiff’s attorney to improperly uncover legally protected data -- as Bergman points out, there are limits to what is “discoverable” -- or create the illusion that certain data exists when in actuality, it does not; and
Walk you through the process of defending yourself in the most effective way consistent with the law and high integrity.
What is a Deposition?
Fundamentally, a deposition is a conversation. What sets it apart from a chat at the local coffee shop is that one person, the “deponent,” is under oath. Generally, the conversation will primarily consist of a question-and-answer session in which a lawyer for the opposing party will ask the deponent questions and the deponent will answer.
This conversation functions essentially as an extension of the courtroom and becomes a part of the public legal record of the case.
Who Becomes a Deponent?
In the course of a malpractice lawsuit, it is not uncommon for a wide array of individuals to be deposed. The law governing civil proceedings in the United States is intended to provide both parties -- plaintiffs and defense -- with the opportunity to gain equal access to the data unearthed in the course of discovery. Deposing a variety of people with information about the case is one way for attorneys on both sides to gather this data.
Consequently, you may see lawyers conduct depositions with a number of individuals, including:
The physician or other professional healer who has been named defendant;
The patient who is the plaintiff, and/or family or others connected to them;
Other witnesses, such as healthcare personnel with firsthand knowledge of the case;
Expert witnesses, professionals unrelated to the medical case in question with expertise pertinent to the disease, procedure, or pathologic findings under examination.
One at a time, likely on different days and often in different places, these individuals answer questions related to the details of the case at hand. Little by little, by gathering this information, lawyers on both sides piece the story together in the way they deem most favorable to their client’s interests.
Who Will Attend?
In addition to the deponent, lawyers for both sides will be present. If there is more than one defendant in a case and each has their own defense counsel, the attorneys for those other defendants will also likely attend. After all, they all have an interest in discovering what you or any other deponent has to say.
There will certainly be a court reporter, a skilled professional who transcribes the deposition word for word, creating a legal transcript which becomes part of the public record. In some instances, a videographer will attend and video-record the deposition as well.
Finally, the parties themselves, plaintiffs and defendants, may attend a deposition other than their own. Whether you should, however, is another question entirely. I would suggest deferring to your lawyer’s judgment as to whether or not to do so. Their job is to represent your interests well in that setting. In many instances, they may prefer that you not allow others’ testimony to cloud your memory, but rather read the transcripts at a much later date. Not to mention that there is wisdom in allowing them to do that work for you rather than heaping added stress on yourself.
Where Does it Occur?
Depositions generally take place around a table in a quiet place, often a formal conference room. This may be at your defense attorney’s office, the office of the plaintiff’s attorney, or at a hospital, for example. As deponent, you will generally sit next to your attorney, where you can easily attend to anything they might say (not to mention catch whatever supportive vibes they might be sending you), and where you can clearly see and hear the deposing attorney.
How Long Will it Go?
It is not uncommon for a deposition to go several hours or in some instances, all day. It all depends on the number of questions attorneys wish to ask and the time it takes to answer them. Breaks are permitted during a deposition, and if you as deponent need one, you only need ask.
All right, I think I’ll stop there for now. In my next post, we’ll dive into the nitty-gritty of testifying at a deposition. If you’d like one-on-one help to prepare your mindset for deposition, explore coaching here or email me here to set up a free initial consultation. Or, e-mail me please with any pearls you may have learned in the course of your own experience.