Although the judge and jury will not be present during a deposition, your patient might be.
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AAOS Now

Published 12/1/2011
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Paul E. Weathington

The ABCs of an effective deposition

Regardless of the reason for the lawsuit, as the defendant physician you will need to thoroughly prepare for your deposition. The plaintiff’s attorney has wide latitude to ask questions. Your attorney will make objections and give you counsel as necessary. Your testimony becomes a part of the record, and any inconsistencies between your deposition and trial testimony may be used to undermine your credibility. The following tips will help you give an effective deposition.

  1. Prepare, prepare, prepare. Review all pertinent medical records in the case so you have a clear, chronologic understanding of the care you provided. Also, review the pertinent legal documents, such as the plaintiff’s complaint, any expert affidavits, or your responses to any written questions (interrogatories) that may have been generated prior to your deposition.
  2. Tell the truth.
  3. Never guess or speculate. “I don’t know” and “I don’t remember” may be the best response if you are unsure of the answer.
  4. Never answer a question you do not understand; rather, make the opposing attorney repeat or restate the question.
  5. Answer only the question asked; do not volunteer information. You are not there to educate the other lawyer or persuade the other side that your care was appropriate. The time for educating others and persuading people is at trial, not in your deposition.
  6. Answer the question succinctly. Even if the attorney sits and stares at you after you have finished your answer, do not feel compelled to offer any additional testimony.
  7. Do not let the plaintiff’s attorney put words in your mouth. Beware of questions that misstate your testimony or the facts of the case, and do not accede to any summary, paraphrase, or other statement by the plaintiff’s attorney that does not exactly match your testimony.
  8. Pause before answering. Take your time and always think about the question being asked before you begin your answer.
  9. Do not think out loud.
  10. Listen to your attorney’s objections. These will be cues as to whether or how you should answer. Discuss any problematic areas of your personal, educational, or employment background with your attorney before your deposition so that your attorney can make the appropriate objections or signal a careful answer.
  11. Be professional at all times. Do not express anger, joke around, or use unprofessional language.
  12. Don’t think you can speak “off the record.” Your deposition is a significant, formal proceeding even though neither the judge nor jury is present.
  13. Always review the document about which you are questioned, such as a medical record, before you begin your response.
  14. Dress professionally and conservatively.
  15. Never show or express indifference about the patient, the lawsuit, the circumstances giving rise to the lawsuit, or the legal process.
  16. Ask for breaks as necessary or when you need to confer with your attorney.
  17. Do not give legal conclusions; do not make statements such as “that is not relevant.”
  18. Do not volunteer to supply any documents requested by the questioner. Let your attorney handle any document requests.
  19. Do not concede that any particular text or journal is authoritative. Instead, explain that you may find certain textbooks or journals to be informative and helpful, without agreeing to everything in the text. If you agree that a journal, text, or source is “authoritative,” the plaintiff’s attorney will likely find something from that source to discredit your care of the patient.
  20. Be reluctant to agree with anything the plaintiff’s lawyer says. Never forget that the plaintiff’s lawyer’s job is to prove you were negligent.
  21. Do not let the questioner interrupt your answer. Simply explain that you have not finished your answer, and continue to complete your response.
  22. Do not panic if you are caught in an inconsistency or backed into a corner that is not helpful to your defense. If an inconsistency comes to your attention, simply state, if asked, your present recollection and the reason for the inconsistency. Your attorney will repair or rehabilitate your deposition testimony at the end of the deposition or at trial.
  23. Remember that any hypothetical questions are really questions about the plaintiff. The questioner may ask you to assume certain facts as true, and then have you give an opinion about what type of medical care should have been rendered to the hypothetical patient. Make sure you have sufficient facts to form an opinion based upon the hypothetical. Imagine that the hypothetical patient is sitting in front of you, and determine what information you would need before you made a treatment decision. Tell the questioner that you need additional facts to answer the question if you are not given enough information. If you cannot answer the hypothetical question without seeing the patient, simply explain that to the questioner.
  24. Summarize complicated events where possible. If you are asked a question about a complex series of events, like “what happened next?” or “tell me everything Dr. X told you,” summarize where possible. If asked “is that all?” feel free to explain that you have answered according to your present recollection.
  25. If your deposition will be videotaped, dress appropriately, turn off your cell phone, face the camera, avoid eating or drinking, and be aware of your body language.
  26. Get a good night’s sleep and be on time.

Medicine is not an exact science; countless factors determine the treatment and care of each individual patient. Relax and remember that no one at your deposition will have as much medical knowledge or experience as you have about the particular issues involved in the case. Remember that only you were there, and only you saw, examined, and treated the patient. You cannot “win” your deposition, so do not feel pressured to do so. You will give an effective deposition if you properly prepare.

Paul E. Weathington is the senior partner at The Weathington Firm, PC, in Atlanta.

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.

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

Additional Resources

http://www.aaos.org/research/guidelines/guide.asp