Giving a deposition is a form of communication that is usually completely foreign to health care providers. The surgeon who is in complete control of her operating suite may find herself utterly lost in a conference room surrounded by attorneys. Some physicians become old hands at giving depositions, but for newcomers to the arena, emphasizing a few do’s and don’ts can make the process easier:
- Spend the time it takes to prepare. Most health care providers view giving a deposition as a nuisance at best. For a defendant in a medical malpractice case, however, giving his or her deposition is likely to be the single most important contribution they make to their defense. Preparation is critical. Set aside a few hours several weeks in advance of the deposition to review the medical records and familiarize yourself with the facts of the case. Knowing the chart is the most important part of deposition preparation. Meet with your attorney as many times as necessary. I have never seen a defendant win their case in a deposition but I have seen plenty lose it. Those failures are almost always because the witness was unprepared.
- Listen to the question, answer the question, and stop talking. A deposition is not a forum for the defendant to tell his or her story. It is an opportunity for the other side to ask questions. The witnesses’ only role is to answer the questions they are asked. It is extremely difficult for most witnesses to bite their tongue when there is something they are dying to say that they haven’t been asked about. Resist the urge to speak up! You will get to tell your story at trial. If your attorney feels there is something that has been overlooked that needs to be explained at the deposition he or she will ask you about it.
- Take your time. Don’t be afraid of long silences. Pause after the question is completed to think about your answer. The transcript will not say “Dr. Smith stared at the ceiling for five minutes before answering.” That pause will serve two purposes: it will allow you to be sure of your answer before responding and it will give your attorney an opportunity to object to the question. Don’t be in a hurry to get the deposition over with as this will inevitably lead to careless testimony that you will regret later.
- Ask for clarification. If you don’t understand a question, ask the questioner to explain it to you or to rephrase it. Don’t try to answer what you think they are trying to ask. Be certain of the question before answering. Also, if the questioner asks you more than one question at once (you would be surprised how often this happens), either ask them which question they want you to answer or make it perfectly clear which question you are answering. Precision is essential, because attorneys can twist sloppy testimony to their advantage.
- Be patient. You are going to be there for a while. Resign yourself to that fact and settle in for the long haul. I recently had a three hour deposition for a physician whose only involvement in the case was a single phone call. Health care providers are used to identifying a problem, dealing with it, and moving on to the next problem. Attorneys behave differently and it can be extraordinarily frustrating. You need to understand, though, that many attorneys prolong depositions and ask repetitive questions for that very purpose. They want you to get frustrated. They want you to get impatient. When you look at your watch, they know it is getting close to the time to ask the really important questions. Just kill them with kindness. If you have to give the same answer over and over, so be it.
- Try to be helpful. Health care providers are by nature helpful people. This personality trait is often what led them into health care in the first place. But it can be a liability in the setting of a deposition. Remember that your role is to simply answer the questions you are asked. That’s it. If the questioner obviously doesn’t understand something, it is not your role to correct him or her, as long as your answers are responsive and accurate. If your attorney feels there is something that needs to be clarified, they will have the opportunity to ask you those questions. They may, however, want to leave the other attorney in the dark. If that is where your questioner finds themselves, it is not your job to lead them to the light.
- Lose you cool. The expression “never let them see you sweat” is particularly true when it comes to depositions. Frustration and impatience, even anger, are to be expected and you can count on feeling that way. But never let anyone else see it. This is especially true if the deposition is being videotaped. All the jury will see is you losing your temper. They will never see the four hours of badgering that led you to that point. There is nothing more frustrating for a plaintiff’s attorney than a witness who serenely and confidently answers their questions for hours on end. If they see they can’t get to you, it drives them crazy. Trust me. More importantly, this is the image you want to portray to the jury.
- Try to fill in the gaps in your memory. Consider this example: An attorney asks, “Doctor, what risks and benefits did you discuss with the patient before surgery?” The physician doesn’t even remember the patient, let alone the informed consent discussion. They do, however, have a routine discussion that they have with every patient. What is the right way to answer that question? You would be surprised how many witnesses say, “I told her about bleeding, infection, risk of anesthesia, blah, blah, blah.” But that is not an entirely honest answer. The right answer would be something like, “I don’t recall what we discussed, but I know what my routine discussion that I have with every patient is. Would you like to hear that?” Witnesses inevitably get themselves into trouble when they testify about what they think the probably did as opposed to what they remember they did. Stick to what you remember and don’t try to fill in the gaps.
- Anticipate the next question. Don’t try to figure out where the questioner is “going” with the questions. Simply answer the questions asked. If you try to anticipate what the next few questions are going to be and beat the attorney there, you may wind up taking him or her into a topic they never intended to address. Listen to the question. Answer the question. Stop talking.
- Guess. It constantly amazes me how many witnesses think they have to give an answer to every question, as though a deposition was a board examination. If you don’t know the answer to a question, it is perfectly fine to say you don’t know. In fact, it is preferable to trying to pull an answer out of the air. The same is true if you are asked for an opinion that is outside your area of expertise. It is far better to say that you don’t have an opinion, or that the subject is outside your area of expertise, than it is to guess the answer and be wrong.
And a bonus Don’t:
6. Change your answer. Attorneys ask you that same question five different ways for a reason. They want to see if your answer changes. If it does, you are going to be made to look like you don’t know what you’re taliking about. Stick to your guns no matter how many times the question is asked. As I said before, attorneys will seek to exploit the helpful nature of health care providers. They know that if they ask the same question over and over one of two things will happen: 1) the witness will think they must not be answering the question right, so they will try to give the questioner the answer they are looking for; or, 2) the witness will give the questioner the answer they are looking for just to get the whole damn thing over with. Don’t fall into either trap.