AAOS Now

Published 6/1/2008
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Douglas W. Lundy, MD, FACS

Be prepared before depositions

Tips for responding to questions during expert witness depositions

How to Excel During Depositions: Techniques for Experts That Work (SEAK, Inc., Falmouth Mass., 1999) by Steven Babitsky, Esq., and James J. Mangraviti Jr., Esq., is one of the best resources I’ve found for orthopaedic surgeons who serve as expert witnesses and for those who are defendants in a lawsuit. Last month, I reviewed some of the authors’ tips on answering counsel’s questions. Here is some additional advice I found especially helpful.

Expressing your opinions
One of the goals of a deposition is to “nail down” the testimony so that no surprises surface during the trial. An attorney who leaves a line of questioning open and does not know how you, as the expert witness, will respond to a question is running a risk. A good attorney, therefore, will ensure that your opinions regarding the facts of the case at hand are clearly on the record. If you change your answer during the trial or subsequent questioning, your standing as an expert witness may be challenged.

The deposing attorney will also attempt to define the subject areas your testimony will cover. For example, the attorney may ask, “Will you testify regarding the computed tomography scans obtained on this patient?” If you answer “no,” but later do testify about the scans, you will have to explain what changed between the deposition and trial. If you answer “yes,” the attorney will ask follow-up questions to learn what you will say at trial. The obvious lesson from this is that you should review your deposition testimony before the trial to reduce the chance of contradicting your previous testimony.

During the deposition, the attorney may attempt to have the rationale for your conclusions stated into the record. This enables a challenge to your decision-making process during the trial. Because it will be difficult for you to change your logic later, you will need to be clear on the rationale behind your conclusions.

An attorney may ask you when you formed your opinion. This critical information can then be linked to the timing of imaging studies, laboratory reports, and other consultations. In preparing for your testimony, try to determine when a clear diagnosis was established rather than when several “rule-out” diagnoses were in play.

According to the authors, “Your opinion is only as good as the factual assumptions upon which it is based. You can expect to be questioned closely regarding the facts you assumed and the reports, tests, and other evidence you relied upon in forming your opinion.”

Strategies to watch for
An attorney may attempt to challenge and undermine the basis of your testimony. Even before the trial begins, opposing counsel has scripted a possible cross examination of your testimony, carefully phrasing the questions. If you waver on your acceptance of facts or assumptions, the attorney may challenge the validity of your conclusions. For example, if you admit that the imaging study entered into evidence was not the most conclusive diagnostic test, the attorney may challenge the certainty of the diagnosis.

Some attorneys may try to obtain “admissions” from you to narrow your testimony and the possible responses you may give in court. This line of questioning may start with the attorney asking, “Doctor, let’s see if there are some things that we agree on here. Would you agree that…?”

Such questions will be carefully worded and may not be phrased the way that you would phrase them if you were speaking with a colleague. Be careful during this line of questioning. If you don’t completely agree with the attorney’s characterization, don’t agree!

You should also be prepared for hypothetical questions that could discredit your testimony. These questions are frequently formulated along the lines of “Doctor, would it change your mind if I told you that…?” The attorney that retained you should be able to help you predict some possible hypothetical questions and may have advice on how to handle these situations.

A summary question attempts to condense your entire testimony into one answer. Listen carefully to everything that is said. If you don’t agree entirely with every word in the statement, do not agree with the summary question. If the attorney uses broad or ambiguous terms that can be defined in different ways, ask for clarification before you respond.

The catchall question is often the last question that you will be asked. These questions should be asked briefly because they are a way of “fishing” for more information. One example of this type of question is “Do you recall any other information that bears on this case?” An effective answer would be “Not at this time,” which allows you to recall something at a later time and not contradict your earlier testimony.

Fees and compensation
Counsel may ask questions about your fees and compensation during the deposition or at trial. As long as your fee schedule is justified and comparable to what you would earn if you were not in court, you should not be overly concerned about this line of questioning. The authors recommend that you know your legal work fee schedule or you may appear unprepared and evasive.

Authoritative writings
Agreeing that a text is authoritative opens you up to a lengthy interrogation on the text. Before categorically agreeing that a text is authoritative, you should consider whether you want to characterize the entire book as faultless. Because you may not agree with everything in the text, you should ask the attorney to clarify what specific information in the text is under question.

Interestingly, your own previously published materials may be used to challenge your testimony. Before you testify, you should carefully review your previously published work so that your previous statements cannot be used to contradict your current testimony. Do not allow the work and insight you have contributed to the orthopaedic literature to be used to damage your credibility. Know what you have previously said or written so that you do not inadvertently contradict yourself.

I recommend that you read How To Excel During Depositions: Techniques for Experts That Work now, and review it right before you are deposed. Like a good surgical text that includes practical information that can be used immediately, this book gives you valuable techniques to survive your next deposition.

Douglas W. Lundy, MD, FACS, is a member of the AAOS Medical Liability Committee and editor of the Orthopaedic Risk Manager articles in AAOS Now. He can be reached at lundydw@resurgens.com