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Published 11/1/2010

Tips and pointers for depositions

By B. Sonny Bal, MD, JD, MBA, and Randy R. Cowherd, JD As the defendant physician in a medical malpractice litigation, you should know that your deposition is critical in planning and executing a successful defense. Jurors are often shown a videotape of your deposition before you make your in-person testimony. This article offers some practical tips and pointers to help you prepare for deposition.

Before the deposition
Before meeting with your defense lawyer, review the chart thoroughly, including the relevant hospital records, lab data, radiographs, and related documents. Do not mark up, make notes, attach literature articles, or change the record; the patient’s attorney will question any modifications to the record.

Discuss the relevant literature with your defense lawyer, who will help research that information. Any research conducted on your own is subject to discovery by the patient’s attorney, and you will not want to produce materials that are unsupportive of your treatment and decision making.

Plan to meet with your counsel for several hours before the deposition to review the relevant records, discuss the medical theories of the plaintiff’s lawsuit, and develop your defense theme. Avoid phone calls, pages, or other distractions during this time.

Your deposition is the only chance for plaintiff’s counsel to quiz you directly about the event in question and test their theories with you. The deposition is conducted under oath and will be videotaped. Be prepared in terms of appearance and content as the consummate professional; depositions are serious and should be treated as in-court proceedings.

The keys to a good deposition performance are a thorough knowledge of the medical record, preparation, mental discipline, and understanding both the legal theories advanced by the plaintiff and the defenses to those allegations.

At the deposition
You may be surprised by the number of people at your deposition, including one or more plaintiff lawyers, a transcriptionist, a videographer with recording equipment, and possibly the patient along with a family member. Whatever you say may be used against any party who had proper notice of the deposition.

  • Remember to “know what you say, and say what you know.” Do not try to outsmart, outfox, or bully the opposing lawyer; those tactics are ineffective and unhelpful. Stay focused and concise in responding to questions that will seem laboriously detailed and tedious. Following are some typical questions and statements:
  • What facts were you aware of at relevant times? What facts were you unaware of? (The plaintiff’s attorney will try to pin you down on the facts to prevent you from introducing additional testimony after the trial begins.)
  • Tell us about your educational and employment history. What experience have you had with the medical issues central to the case?
  • Please read, word for word, your handwritten notes into the record.

The plaintiff’s attorney will try to incorporate their expert witness’s professional opinion in building the case against you. In doing so, the lawyer may ask you open-ended, hypothetical, or leading questions. Open-ended questions attempt to find out what you know about a subject. Hypothetical questions are designed to commit you to a line of reasoning that will then be used against you when discussing your specific care and treatment of the plaintiff patient. The leading question technique is often used to get you to commit to a proposition that supports the plaintiff’s case.

A different landscape
Depositions are one of many discovery tools under court rules for the feuding parties to learn the strengths and weaknesses of the other side, and hopefully resolve their differences without a trial. Other discovery tools are written interrogatories and requests for documents; both may precede the deposition by several months.

Follow the specific advice of your counsel and realize that the legal environment is different from the medical one. The rules of the game, procedures, norms, and landscape will seem alien and may offend your sense of fairness and efficiency. Bring your professionalism, maturity, and medical knowledge to the deposition, and let your lawyer apply those attributes to develop the best strategy for a successful defense.

Dr. Bal is associate professor of orthopaedic surgery at the University of Missouri in Columbia, Mo. He can be reached at balb@health.missouri.edu

Randy Cowherd practices civil litigation and appellate work with the law firm of Haden, Cowherd, & Bullock, LLC, in Springfield, Mo. He can be reached at rcowherd@hcblawfirm.com

Editor’s Note: Articles labeled Orthopaedic Risk Manager are presented by the Medical Liability Committee under the direction of contributing editor S. Jay Jayasankar, MD.

Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional.

E-mail your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.

10 tips to remember

  • Work closely with defense counsel to understand the medical theories of the plaintiff’s case and your defenses. Make the time to meet with your defense counsel early and often.
  • Come prepared. If you have not had time to study the medicine in question or review the chart, ask to postpone the deposition. You have to be perceived by the jury as a trustworthy professional and an expert in your field.
  • Focus on the facts without verbosity; tell the truth as it is and no more. Be confident and firm with your answers and repeat them without adding details or clarifications.
  • Listen carefully to the question, and only answer the very specific question asked. Do not lose your temper, joke, use sarcasm, off-color language, or pithy comments.
  • Never volunteer information, even if you think it will help your case.
  • Do not play smarter than the lawyer; however gratifying, this tactic will not help your defense. Do not try to educate the opposing lawyer by citing literature or related evidence that supports the case.
  • Do not guess, speculate, or make assumptions in answering a question because the plaintiff’s attorney will only use what is harmful to your case. Simply say that you do not know the answer at the moment.
  • Do not refer to any document during your deposition unless you have recently seen the document, know exactly what it states, and can absolutely and positively produce it. If you refer to a document, the plaintiff’s attorney will request a copy of it. Often, a referenced document cannot be found or does not read as you remembered.
  • Do not refer to coworkers or employees during your deposition unless directed to do so by your attorney. The names you offer are likely to be deposed, and their testimony could surprise you.
  • Do not refer to any document, textbook, or journal as “authoritative.” In law, “authoritative” means you adopt that source as a rule. If you vary from those rules, that establishes a deviation from the standard of care.