Notes from a Medical Malpractice Plaintiff Attorney: Doing a Great Deposition

Your deposition is your best chance to lose your case before it has hardly even started.

That is because it is actually a job interview. Both the plaintiff’s attorney and your own attorney are interviewing you for the position of “defendant” and each wants to see how well you will perform in that role.

In fact, although you may think that the plaintiff’s attorney is the one you have to impress, it is actually your own attorney who matters more to you at this point in your case.

The plaintiff’s attorney has already made the decision to include you based on the facts in the medical record and is prepared to try his or her case from that record alone if necessary. On the other hand, what happens on the defense side is still in flux. Your malpractice insurance carrier has already had the case reviewed by its own experts and has come to a preliminary assessment of how it will proceed – go to trial or settle and if so, for how much – but that is not yet set in stone. The assessment of how you do at your deposition, a setting that will be tougher than cross-examination because it is conducted under looser rules, will matter a great deal to the final determination of how far your insurer commits to go in your defense.

Your goal is therefore to not just get through your deposition but to do a great one.

Now, let’s look at how you can make that happen.

1. First, review the chart and create a summary of the events and whom you spoke with in the form of a time-line because this is the usual way that plaintiff’s attorneys set up their cases and so it will be reflected in how they question you at the deposition.

As you do so, be honest with yourself about where there may have been lapses. This will matter significantly because of what you will do next.

2. Ideally, your attorney will be well-versed in your case but the real-world fact is that defense firms often send attorneys without any significant knowledge of the case to cover depositions. Meanwhile, however, the plaintiff’s attorney will know their case inside and out and will also have investigated you.

You should therefore prepare a short presentation about your own background and one in layman’s language that summarizes the medical facts, including the standard of care, and should then review those with your attorney. This process will also help you clarify your own thoughts and keep your testimony clear and to the point, and the fact that you and your attorney will be working from the same understanding of the case will make you more likely to function as a team at the deposition.

This is where the honesty mentioned above comes in: Tell your lawyer the truth! If you have a questionable issue in your background or actually made an error in the case, your lawyer must be prepared to deal with it.

You will also score points in that lawyer’s estimation. Frankly, he or she probably already knows if you have a personal glitch or delivered problematic care because the carrier has already reviewed both you and the case, so that you not trying to dissemble or cover-up matters a great deal in telling that lawyer that you are a trustworthy client and therefore someone jurors will listen to with credence.

Whatever you tell your attorney is absolutely privileged, so do not hold back on facts that are not in your favor.

3. The next significant way that you can have an impact on your deposition is ensuring that you will be in the proper frame of mind when the deposition actually takes place.

The first thing to consider is the location of the deposition. Usually, your deposition will be held at your defense firm’s office because that is their “home turf”. However, it may be far from your “home turf”. If it is inconvenient for you to get there but the plaintiff firm’s office or the courthouse is nearby, tell your lawyer that and ask if you can be deposed at one of those other sites. You will likely be accommodated in that request because no attorney wants a tired and aggravated client dragging themselves in after a long commute when they could have had one who is rested and calm.

Your next task is what may seem the hardest: Relax!

Stop thinking about your upcoming deposition. Stop talking about your upcoming deposition. On the night before your deposition, watch a TV show or a movie that you really like, or read a good book, and then get some sleep. Definitely do not drink or take any medication that could leave you groggy.

You should review your summary within the week before your deposition but do not go over it the night before. There is nothing new that you will come up with that you never thought of before and you need to be rested and relaxed for the next day’s work.

Then, on the day of your deposition, dress comfortably. You will be in the chair for several hours and you want those hours to be as physically comfortable as possible. In particular, if you are male do not wear a tie unless you are very comfortable doing so because the moment that you loosen it is the moment that you have shown your breaking point.

4. Your next step is conducting yourself well.

Let’s first go back to how you are dressed.

Showing up in Armani or draped with Tiffany jewelry will not be intimidating to the plaintiff’s lawyer but will tell both the plaintiff’s lawyer and your lawyer that you are likely to turn off a jury of ordinary folks. On the other hand, showing up in jeans, a tee shirt and flip flops to show your contempt for the proceedings simply makes you look like an ass, and again both lawyers will take note of that.

Business casual is the proper attire. You will look professional while also being physically comfortable. Also make sure to avoid anything that will distract you, such as jangly jewelry or jewelry that you tend to fiddle with.

Now that you look your professional best, you must act the same way.

The first step in that is literally telling yourself before you start, “This is not personal”. That is because it is not. The plaintiff’s lawyer is doing his or her job and you are there as a participant in a series of events. If you lose sight of that and go in feeling persecuted and angry and determined to take it out on the plaintiff’s lawyer, your testimony will reflect that and not the facts of the case, and you will also be showing both lawyers that you are a loose cannon who will act out in front of a jury.

Instead, be courteous.

You have probably heard all the stories about how doctors triumphantly put scummy parasite lawyers in their place with a withering put-down or by quoting the law back at them but, in reality, the lawyer that you believe that you just pinned with your retort is actually now the happiest lawyer in the world because they just found out how to make you look like an arrogant jerk in front of a jury. Meanwhile, your own attorney is composing a memo to his or her senior partner about how you are likely to antagonize a jury and so settlement should be offered.

On the other hand, maintaining a calm demeanor and being ordinarily civil takes your personality and feelings out of the equation. It makes it hard for the plaintiff’s attorney to “read” you and confirms to your attorney that you will not sweat during cross-examination. Most importantly, since you will focus on what you need to say rather than on the attorney questioning you, you will be where you need to remain – discussing the facts.

5. The next issue is how to respond to questions.

First, always take a breath pause before you speak. This is absolutely critical because it gives your attorney a chance to object. Once you have begun to speak, such objection is no longer possible and the only alternative would be to try to have your answer stricken by bringing a Motion – and those are never granted…

Of course, if your attorney has objected, stop talking! Never – no matter how passionately you feel that you need to answer – say, “No, I want to answer that”. If you sincerely believe that answering would be advantageous to you, ask to go off the record and then speak privately with your attorney.

If, on the other hand, your lawyer has not objected and you think that the question is not appropriate, do not object yourself. Again, ask to confer with your lawyer privately.

Now, you are ready to answer

You must always remember that the deposition transcript is a legal document. Your statements in it are taken under oath and will be deemed as the truth from your side and they can be read back in court to impeach you or even as substitutes for your testimony if you cannot be present.

Your objective is therefore to tell your side of the story clearly, and verbal gamesmanship interferes with that.

That is why you should not really pay attention to the common advice of “Just say ‘Yes’, “No’ and ‘I don’t know’”. This is actually terrible advice in real life because this is not how human beings communicate and you will not be able to maintain it past the first bare questions. In fact, if your lawyer presents “making the plaintiff sweat for every answer” as a desirable tactic, you have a lousy lawyer because your focus will be on the plaintiff’s attorney rather than on getting your version into the record.

Instead, just speak naturally while staying succinct.

First, listen closely to the question so that you do not offer more than it actually asked. This is harder than it seems because you will feel challenged and will want to launch into a narrative in response. Again, go back to the fact that this is a job interview and no matter how much you might want a job, you would never natter on in that setting.

You also do not want to fall into the normal human tendency to try to fill in gaps in memory. If you are not sure of something say so. You may then be offered a document or other piece of evidence and asked if it refreshes your recollection. If it does, fine. If not, then say so. Do not offer a guess as a memory.

You also have to be very careful to not let your ego get in the way of valid testimony. If you are asked about a medical issue that you really are not sure of, do not try to fudge. It is far worse to say something provably incorrect and have that attributed to you as your actual knowledge level in front of a jury to impugn your overall competence than to admit that you do not recall at the moment or do not know. Also, avoid saying that you could have looked the issue up if, when the events were occurring, you did not.

It is also essential that you remember that while your goal is to tell your side of the story, it is not to convince the plaintiff’s lawyer that you are right.

The case will not go away just based on a deposition unless you were only included erroneously and the deposition reveals clear non-involvement, as in a case of friend of mine who was listed on the call sheet incorrectly and showed up at her deposition with her passport to show that she was not in the country on the day of the problem.

On the other hand, aggressively pitching your own side will just make you sound defensive, which would be a disaster at trial and so is something that both attorneys are looking for in you. Instead, just present the facts of your involvement clearly and without personal editorialization.

6. It is essential that you guard your own privacy throughout the entire process.

The attorney-client privilege resides in the client. This means that if you waive it – even by accident – you lose it.

Therefore, if you need to speak to your lawyer during your deposition, either whisper to him or her behind your hand, or ask to step outside, and then speak only in very low tones.

Do not write notes to your lawyer – they are potentially visible to others and can also be read if you then toss them out, and therefore can breach the privilege.

Even when you are not in the deposition room, remember that you can be overheard. Do not try to discuss the case in a public area in the building where you are deposed and if you go to lunch with your lawyer do not do it in the restaurant either because you do not know who is at the next table. If you absolutely must converse at length with your lawyer about the case during a break, find an empty room or go to your car.

7. Several weeks after your deposition is finished, you should receive a copy of the transcript to review. If you do not, contact your attorney because this is an absolutely essential step since, as discussed earlier, the transcript will be held to legally reflect what you said.

The simple fact is that words like “not” often get left out by the court reporter, thereby completely changing an answer. Medical terms are also often transcribed very inaccurately.

You are not permitted to re-write testimony substantively because you now wish that you had said something differently but you can make necessary corrections and it is worth every moment that it takes you out of your busy schedule to do so.

So, there you are.

Faced with a chance to lose your case from the start, you have instead given your attorney a strong sense of confidence in you and powerful tools to work with on your behalf.

Well done, Doctor!