A few doctors do it well. Some doctors do it “well enough.” Many do it poorly. But we all wish we didn’t have to do it at all. Of course, we are talking about depositions. Medical malpractice depositions, specifically. Why is this important? Many medical malpractice cases don’t go to trial. But most defendants (doctors) are deposed. Knowing how to comport yourself during a deposition is critical.

A strong deposition often deters an opposing attorney from proceeding onward. A poor deposition will give your opponents an edge in the event your case is tried.

Let’s be clear: We know this is serious. And we know the stakes. How do we know? Because we’ve been there ourselves.  

A little background: Our Founder and CEO, Jeff Segal, MD, JD was sued for a meritless reason while practicing neurosurgery. The case was eventually dismissed, but the experience of being sued for a frivolous reason galvanized him. Dr. Segal created Medical Justice – an organization dedicated to protecting doctors from medico-legal threats. And we’ve been at it since 2001.  

Why we bring this up: Dr. Segal provides free consultations to doctors in need of help. If you are preparing for a deposition (or navigating any other medico-legal threat), schedule a free consultation with Dr. Segal. He is more than equipped to drive you towards a more favorable outcome. Visit our booking page to schedule a consultation – or use the tool linked below.

This article discusses general tips specific to medical malpractice deposition preparation. We’ll outline 16 “best practices” that are critical to your success. The first five are bitesize. The remaining eleven represent deeper dives.  

We will equip you with the knowledge required to prevail. Nailing your deposition is tall order. We’ve seen doctors struggle to get this right. And doctors are smart people. Given the stakes, it is critical you do nail it. The keys to success are preparation and the counsel of seasoned experts. 

Let’s start with definitions. What is a medical malpractice deposition?

Your deposition is your oral testimony, supplied under oath. It is memorialized by a court reporter, word for word (hopefully). The opposing attorney asks you questions about the case. You supply answers. That resulting narrative is your deposition. 

Some fast facts: A judge and jury are not present during your deposition. Those elements come into play only if the case moves to trail. The audience for a malpractice deposition is typically limited to the attorneys, the court reporter, and the deposed. 

Why must I supply a medical malpractice deposition? 

To proceed on the trail, each side must acquire information about the other. For the purposes of this piece, we’re focusing on why your opponents are interested in your deposition. 

First and foremost – the opposing attorney wants to learn what you know about the case. He can’t do his job unless he gets inside of your head. Therefore, he must collect facts from you. 

Second – the opposing attorney wants to hear your story, and then lock you into that narrative. Locking you into a narrative reduces the risk he or his client will be surprised at trial. (For our more seasoned doctors, remember the original Perry Mason TV show. There was always a surprise presented at trial. That rarely happens in real life.) This is one of many reasons why it is critical you get your deposition right round one. There are no do-overs. 

Thirdly – he’s sizing you up. He wants to diagnose your “stage presence.” The opposing attorney is thinking: “How will this individual perform in the courtroom?” Your language, mannerisms, and appearance all affect the jury’s perceptions. A defendant who is collected, cool, and confident discourages the opposition. He will likely be perceived favorably by the jury.

Conversely, a paper bag will be blown up and torn apart. 

Ultimately, his goal is to create a record of you (the doctor) making a mistake. If the opposing attorney catches you in a misstatement, he’ll use that record to paint you as untrustworthy.  

A strong deposition shakes the opposing attorney’s confidence he has a great case. Conversely, flubbing your deposition will make your life hell and your own attorney’s job much harder. We are equipped to help doctors nail their depositions. Schedule a free consultation with us to learn how we can help. Visit our booking page to schedule a consultation – or use the tool linked below.

Here are five “fast-rules” doctors should memorize in advance of a deposition…

Don’t speculate.

Don’t argue. More eloquently, don’t be an ass.

Don’t rush.

Don’t lie.

Don’t crack jokes.

We’ve distilled the remainder of the piece into eleven key points.

Internalize these strategies in advance and discuss them with your attorney to determine how they can enhance your existing strategies… 

Resist the urge to “explain yourself” during your deposition.

Supply only the facts as you know them. We mention this point first because it is critical. A long-winded explanation may contain hearsay and contradictions. The opposing attorney will be listening closely for language he can exploit to his client’s benefit. Your greatest defense against a sharp voice are concise, truthful answers. 

We know you want nothing more than to tell “your side” of the story. But you must suppress that urge. There will be a time to tell your side of the story – but your deposition is almost never the best time to do so. And if you supply a solid deposition, your case may not go to trial. 

If you don’t know the answer to a question, do not guess.

The opposing attorney will likely ask you a question that no amount of preparation prepared you to answer. Why would he do such a thing? Because he wants you to guess. You’ve likely heard someone in your life use the phrase: “I’m going to hazard a guess.” Take our advice. Don’t guess. It’s a hazard. 

No one wants to appear ignorant – especially during a deposition. But if you don’t know the answer to a question, it is often best to answer: “I do not know.” Do not supply an explanation. 

Keep your emotions in equilibrium.

If the opposing attorney can dress you in a clown suit, he’ll do so. Do not let the opposing attorney get under your skin. He wants to make you angry and excited because angry, excited deponents make mistakes.  

Likewise, if you become too at ease with the proceedings, you’ll may become complacent and act a little “too helpful.” Don’t fraternize. 

Don’t rush.

We are trained to economize our speech, but that can work against us during a medical malpractice deposition. Answer questions in a timely, direct manner, but do not allow the opposing attorney to accelerate your speech. Speak concisely, but temperately.  

Don’t supply information that you have not prepared.

And if the opposing attorney asks a question that suggests he is ignorant of some key point, don’t enlighten him. In a worst-case scenario, the attorney is feigning ignorance, hoping you’ll divulge something he can use against you. In a best-case scenario, the attorney is truly ignorant of a key fact. Don’t be the light at the end of his mental tunnel. Let him wander in the darkness. If he trips, it will likely be to your benefit. 

If a question can be answered in one word (yes or no), answer in one word.

An example: “Did you eat lunch with Ms. Doe last week?”  

A bad answer: “No, I did not eat lunch with Ms. Doe last week.” Why is this a bad answer? It suggests you could have had some contact with Ms. Doe. You did not eat lunch with her last week, but you may have contacted her the week before. You’ve left the door open to more probing questions. 

A better answer: “No.”  

Why is this a better answer? No means no. The opposing attorney can still probe you, but your answer has no implicit clues. 

What are the components of a “best” response? A good response is concise, factually correct, and has been sufficiently rehearsed with your own attorney. 

That said – what happens when the opposing attorney asks questions that cannot be answered so simply? 

The deponent is safest when he supplies specific answers to specific questions. When the opposing attorney asks an open-ended question, respond as follows: “That’s a complicated matter. Can you please be more specific?” 

Don’t speak until the questioner has finished supplying his question. 

Why? You cannot supply a “good” answer to an unfinished question. And if your own attorney intends to object, he loses that power shortly after your vocal cords contract. A delayed answer may be a good answer – but a rushed answer is almost always going to be a bad answer. 

Don’t estimate time or distance.

You are not a yardstick, nor a clock. This falls in line with advice we’ve repeated several times already: Don’t speculate. Our recollections of past events fade with time. This effect is often magnified when we are recollecting periods of time or instances of distance. An examiner on a headhunt can turn a poor estimation (such as the amount of time spent examining a patient) into a bad outcome.  

Never consider the strategic implications of lying.

Just tell the truth. The opposing attorney is already hunting for mistakes and inconsistencies. Lies are easier to exploit than facts. Honesty is the best policy. 

If the opposing attorney asks a question you don’t understand, ask him to rephrase it.

While you may be competent to answer the question, a poorly phrased question is typically a wolf in sheep’s clothing. Ask the attorney to be more specific. 

If your own attorney begins speaking for any reason, cease talking. Embrace silence. 

Your attorney is looking for ways to increase the likelihood your deposition will serve your case, not hinder it. Trust your attorney’s judgment and be prepared to pivot. Such instances will likely have been rehearsed in advance. One universal code is your attorney asking if you need a bathroom break after such a long deposition. This is code for your attorney wanting to speak with you privately and interrupt the flow of the deposition. He has something he needs to tell you. Time to hit the loo.  

We have more tactics to load in the chamber. We’ll update this article based on audience feedback. If you need more information specific to medical malpractice depositions (or, more broadly, depositions related to healthcare), check out the content linked below. 

What Doctors Get Wrong About Med-Mal Litigation | A Deep Dive with Florida Super Lawyer Chris Schulte, JD

How to Have Your Day in Court and Keep Your Nest Egg | Top Med-Mal Defense Measures with Super Lawyer Chris Schulte, JD 

Your deposition will be intimidating. It will be challenging. But it doesn’t have to be insurmountable. Let us walk alongside you. Schedule a free consultation with our Founder and CEO, Jeff Segal, MD, JD. Every case is different, but solid counsel will come from someone who has been in your shoes. Medical Justice can help you nail your deposition. Visit our booking page to schedule a consultation – or use the tool below to schedule.

Medical Justice is equipped to help doctors nail their med mal depositions. We are also equipped to defend your practice from a bevy of other medico-legal issues. We’ve been protecting doctors from medico-legal threats since 2001. We’ve seen it all. Schedule a free consultation with our Founder and CEO, Jeff Segal, MD, JD, to learn how we can help you address a Medical Board complaint – and a bevy of other medico-legal threats.

Learn how Medical Justice can protect you from medico-legal mayhem… 

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.