If you are called upon, follow the Boy Scout motto and “be prepared.”
Although most medical liability lawsuits are settled before they reach trial, settlements are often reached after expert witnesses are deposed by opposing counsel. A deposition is often viewed as the proving ground for lawsuits. Whether you are providing expert witness testimony in defense of another physician or on behalf of a plaintiff, being prepared is your best defense.
During a deposition
The deposition is part of the pretrial, discovery phase of civil lawsuits and differs from courtroom testimony. A deposition, however, is just as formal as a day in court.
Typically, attendance at a deposition is limited to retaining counsel (who engages the expert witness), opposing counsel (who represents the opposing party to the lawsuit), the expert witness (you), a court reporter, and, if the deposition is videotaped, the camera operator. The court reporter records every word spoken during the deposition. In some states, the transcript and/or video of the deposition may become a permanent part of the record of the lawsuit.
Depositions are often conducted in an attorney’s or a physician’s office, which has a less formal atmosphere than a courtroom. Opposing counsel may ask multiple follow-up questions, engaging you in a spontaneous exchange of information and opinions. Opposing counsel may ask questions designed to provoke you.
You should be aware of these tactics. Effective attorneys know how to use such informal, casual conversations—as well as provocative questions—to elicit information that may later be cited in court.
Attorneys are always mindful of how a judge and jury might evaluate the deposition questions and answers. Retaining counsel may instruct you not to answer questions that encroach on client-attorney privileged information and may object to questions proposed by the opposing counsel, but will usually advise you to answer them anyway. During the pretrial conference, retaining counsel will raise the objections and obtain the judge’s ruling on whether the information is admissible.
Opposing counsel notes which questions are provocative, generating a hesitant, equivocal, or angry response. Opposing counsel may use these questions later, knowing that the response may affect the jury’s willingness to believe your testimony.
Goals of the deposition
Questions asked by opposing counsel during a deposition are designed to meet the following goals:
- Learn about your opinions
- Gather as much information as possible about the case
- Evaluate your credibility
Because your comments are recorded, opinions stated during court testimony that differ, even slightly, from opinions offered during deposition may be used to challenge your credibility.
Preparing for a deposition
When asked to serve as an expert witness, you should first have a predeposition conference with retaining counsel to get a clear understanding of the applicable legal standard and any required language that communicates this standard.
You should also verify that counsel has provided you with all pertinent medical records and depositions from parties and other expert witnesses. If not, you should request it and also request adequate review time before the actual deposition. If necessary, you should ask counsel to reschedule the deposition so that you can be fully prepared. Then, be sure to set aside the time necessary to review the documents before the deposition.
The predeposition conference also gives you and the retaining counsel an opportunity to discuss the questions that opposing counsel might ask. Practice answering difficult questions during this conference.
Your preparation should include a review of the basis for all opinions offered. Be prepared to state whether your opinions are based on personal experience or on specific clinical or scientific evidence. Ask retaining counsel about any items, such as subpoenaed documents, that should or should not be brought to the deposition.
You bear the ultimate responsibility to prepare for the deposition. You should know the complete, pertinent medical record and memorize names and dates. Organize materials so that you can find information easily during the deposition. Fumbling through records will diminish your credibility.
Answering deposition questions
Because you are under oath, you have an obligation to answer all deposition questions truthfully. In addition, the AAOS Standards of Professionalism on Orthopaedic Expert Witness Testimony require that orthopaedic surgeons serving as expert witnesses answer in a fair and impartial manner.
Before answering any question, be certain that you understand what is being asked. If you do not, ask that the question be rephrased. Limit your answers to the question asked, not to an anticipated question.
Videotaped depositions provide a visual record of the deposition in addition to the written transcript. Counsel is often heard but not seen on the videotape. If the deposition will be videotaped, take the following steps:
- Dress appropriately.
- Turn off cell phones or pagers.
- Avoid eating or drinking.
- Look at the camera, not counsel, when answering questions.
- Hold exhibits up to the camera.
- Be aware of your body language.
Reviewing the transcript
In most states, expert witnesses may review the deposition transcript for accuracy or may waive the right to do so. Any changes to the deposition that the expert witness wishes to make must be explained on an errata sheet. Discuss with retaining counsel whether to review the deposition transcript or waive your right to review.
Depositions are an important part of the discovery phase of civil litigation. The decision to settle or proceed to trial is often based on the results of depositions. Your deposition testimony, which may become a part of the lawsuit, contributes to this determination. You increase your effectiveness if you are prepared.
Kathleen Delaney is the professional compliance program administrator. She can be reached at email@example.com, firstname.lastname@example.org, or (847) 384-4047. Additional information about the Professional Compliance Program may be accessed at www.aaos.org/ProfComp
This article is not intended as legal advice. Consult your attorney if you have specific questions.
5 tips for expert witnesses
If you agree to serve as an expert witness, keep in mind the following guidelines for answering deposition questions:
- Tell the truth. Opposing counsel will have difficulty challenging answers that are truthful. Honesty increases your credibility with both counsel and with the jury, should the lawsuit proceed.
- Do not interrupt questions. Wait for the attorney to stop talking, and then pause before answering. Interruptions can lead to serious consequences. If you assume that you know the question being asked, you may actually provide information that counsel never intended to request.
- Understand the question. Listen carefully to what counsel says. Do not speculate on the meaning of a question. If you are unsure, ask that counsel rephrase the question until you understand what is being asked. Be wary of compound questions that are really two questions in one. Ask that counsel separate each question, and then answer them individually.
- Maintain your composure. Take a deep breath before answering. Keep your emotions in check. Losing your temper may lead to losing your perspective and cause you to say something that will later be used against you in court.
- Be natural. Although expert witnesses are selected for their knowledge and skill, the deposition is not a showcase for arrogance or pride. Use language that a lay person can understand. Don’t be afraid to answer “I don’t know” if you don’t know an answer. Avoid sarcastic remarks and attempts at humor.