Deposition Dos and Don’ts: How to answer 8 tricky questions
You must tell the truth, but you can answer skillfully to avoid falling into traps set by plaintiff’s attorneys
IN THIS ARTICLE
CASE Direct question at deposition
During your deposition in a malpractice suit, plaintiff’s counsel asks you: “Are you saying it was impossible to foresee Ms. Jones’s preterm premature rupture of membranes?”
How would you reply?
Ninety percent of malpractice cases are settled before trial, and the deposition often is the turning point in those cases.1-3 Your answer to tricky questions such as the one in the case fragment above could favorably affect a critical stage of litigation—or it might spur the plaintiff’s attorney to pursue the case more vigorously. Even if a case is settled in the plaintiff’s favor before trial, the effectiveness of the deposition may determine whether the settlement is $300,000 or $1 million.
Our central message in this article is: Don’t go to a deposition unprepared. We offer guidelines to help you anticipate many different scenarios, and we include examples of honest, skillful answers to difficult questions (see “Honest, skillful answers to 8 tricky questions at deposition”).3-7
Digging for pay dirt
Discovery begins after a formal complaint alleges malpractice. The parties to a lawsuit gather information through written interrogatories, requests for documents, and witness depositions—out-of-court testimony to be used later in court or for discovery purposes.8 The rationale for discovery is to reduce surprises at trial and encourage pretrial settlement. The witness being deposed is the deponent, and testimony is given under oath.9
A discovery deposition is designed to gather information, with almost all questions asked by opposing counsel. If you are sued for malpractice, this is the type of deposition you probably will encounter.
Rules of engagement. The plaintiff’s attorney initiates the discovery deposition. Ground rules vary by jurisdiction, but, in general, the Rules of Civil Procedure give deposing counsel substantial latitude in the questions that can be asked.10 The deponent and defending counsel, opposing counsel, and transcriptionist typically attend the deposition. To help you prepare appropriately, confirm with your defense counsel if other attorneys or the plaintiff will be present.
Not-so-hidden agendas. The plaintiff’s attorney’s primary goal is to gather as much information as possible about your side’s case4 (TABLE 1). No matter how accurate medical records may be, they require interpretation and follow-up questioning of key players to get the full story. Opposing counsel also wants to:
- “lock down” your testimony for use at trial (testimony captured at a deposition can be used to impeach a witness who gives inconsistent testimony at trial)9
- “size up” your potential impact on a jury by assessing your strengths and weaknesses as a witness.11
The impression you make may influence the opposing attorney’s decision about how far to pursue the case. Plaintiff’s attorney Bruce Fagel once told an interviewer that defense attorneys, too, may consider settling a case “if their client shows such arrogance in our deposition that they’re afraid to let him appear in front of a jury.”12
Plaintiff’s attorney has 5 goals at deposition
Lock down testimony for trial
Scrutinize the defendant’s qualifications
Size up the defendant’s effectiveness as a witness
Probe the defendant for bias, arrogance, or hostility
Learn as much as possible—known as “fishing”
Choosing a site. Most depositions take place in a conference room in the law office of one of the attorneys or at a neutral site. Avoid any temptation to schedule the deposition in your office, even though meeting there might seem more expedient and comfortable for you.9 Scheduling the deposition at your site:
- might make you feel it is “just another day at the office” and dissuade you from preparing sufficiently or taking the deposition seriously
- allows opposing counsel to scrutinize diplomas, books, journals, and other materials in your office.
Questioning you about these materials during the deposition is not off-limits for the plaintiff’s attorney. You might find it difficult to explain why a book on your bookshelf is not “authoritative.”
Prepare, prepare, and…prepare some more
Review the case. At least twice, carefully review the entire database—including medical records and other depositions. Perform one of these reviews just before the deposition.3 Having the details fresh in mind will help you if opposing counsel mischaracterizes information when questioning you.
Meet with your attorney. Insist on at least two predeposition conferences with defense counsel.
At the first conference, volunteer all pertinent information about the case as well as any noteworthy medical inconsistencies.2 Find out what documents to bring to the deposition, who will be present, and how long the deposition is expected to take. You might wish to prepare mentally by inquiring about the style and personality of opposing counsel.
Defense counsel does not control how long a deposition lasts but might be able to give a rough estimate. Plan accordingly, and allow for sufficient scheduling flexibility. Depositions typically last half a day but can last more than 1 day.
At a later predeposition conference, defense counsel might walk you through a mock deposition that involves difficult or anticipated questions. This is a good opportunity to master your anxiety and improve your effectiveness as a witness.
You also may wish to go over your curriculum vitae with defense counsel and check it for mistakes or other content that might raise problematic questions during the deposition (TABLE 2). Make sure your CV is up-to-date, and refresh your memory if it lists lectures given or articles written—no matter how long ago—on topics related to the litigation.
Step by step, prepping for a deposition
Thoroughly review case records
Master the case (memorize key names, dates, facts)
Meet with defense counsel at least twice to:
—find out where the deposition is being held, who will be present, and how long it is expected to take
Double-check your curriculum vitae for accuracy and updating
Come to the deposition well-rested
Don’t open Pandora’s box! Keep your answers to deposition questions brief and clear. Opposing counsel may ask broad questions, hoping to encourage rambling answers that reveal new facts. Answering questions succinctly and briefly is the best strategy under most circumstances.
One exception may involve scenarios in which the defense attorney instructs you, for various reasons, to provide information beyond the question asked. For example, when a case is close to settling, your attorney might instruct you to lay out all evidence that supports your professional judgment and clinical decisions in the case. Do not use this approach, however, unless your attorney specifically instructs you to do so.
You are under no obligation to make opposing counsel’s job easier. In a discovery deposition, volunteering information may:
- open up new areas for questioning
- equip the deposing attorney with more ammunition
- eliminate opportunities for your attorney to use surprise as a strategy, should the case go to trial.
Consider, for example, a scenario in which you and a hospital are sued in regard to a labor-and-delivery case. At deposition, you might be asked whether you can identify written evidence in the patient’s chart that the mother was checked every certain number of minutes.
The correct answer is “No,” even though you know such checks are documented in a log kept at the nursing station in that hospital. You might be tempted to reveal this information, but don’t—instead, leave the timing of its disclosure to the defense attorney. Your attorney’s strategy may be to reveal this critical piece of information at trial, when the plaintiff’s attorney has less opportunity to strategize ways to discredit the evidence.
Keep your cool. Attorneys have different styles of questioning. Some may be excessively friendly or polite to get you to let down your guard—only to set you up for a devastating blow at the end of the deposition (or to save this for trial). Other attorneys might employ a bullying style that seeks to intimidate. In responding, always remain composed and resist the urge to counterattack.
In all circumstances, strive for humility and dignified confidence. Opposing counsel gains the advantage when defendants lose composure or become angry, defensive, or arrogant. Indeed, experienced plaintiff’s attorneys may be testing for precisely this reaction in the hope that a defendant will “demonstrate his arrogance” during the deposition or later on the witness stand.12
In working as expert witnesses in malpractice cases, we have observed many instances in which a defendant physician’s arrogant or hostile remarks at deposition played a key role in causing the case to be prematurely settled in the plaintiff’s favor.
Avoid making jokes or sarcastic comments. Even a well-timed, self-deprecating joke may backfire should opposing counsel take the opportunity to point out that the case is a “serious matter.”
Listen carefully to each question during the deposition. Pause for a moment to consider the question and allow time for other attorneys to object.5 Your attorney’s objection may suggest the best way for you to respond to the question. Refrain from answering any questions when defense counsel advises you to do so (TABLE 3).
Don’t answer questions you don’t understand. Rather, ask for clarification. Avoid using adjectives and superlatives such as “never” and “always,” which may be used to distort or mischaracterize your testimony at trial.
Don’t guess. No rule prevents opposing counsel from asking a witness to speculate, but you should generally avoid doing so. You are required to tell the truth, not to speculate or to volunteer guesses. The best way to cause a jury to disbelieve your testimony is to make inaccurate or unfounded statements, which opposing counsel will surely point out at trial.
Don’t be tempted to “plumb the depths” of your memory for a forgotten piece of information, however. If you’re asked, for example, if a patient displayed a specific symptom during an appointment 4 years ago, the true answer is likely to be “Not that I recall,” rather than “No.” Qualify similar answers with statements such as “To the best of my recollection” or “Not that I recall at this time.”
If opposing counsel asks questions based on a particular document, ask to see the document. Review it carefully to determine:
- who signed or authored it
- when it was prepared and dated
- whether it is a draft copy
- whether it contains confidential information relating to patients other than the plaintiff
- whether it carries attorney–client privilege
- most important, whether opposing counsel has quoted it out of context.
Deposition Dos and Don’ts
Always tell the truth
Actively listen to questions, and pause before answering
Keep your cool; never lose composure
Answer only the question asked
Stop speaking and listen carefully if your attorney makes an objection
Avoid long narratives, and don’t volunteer information
Don’t speculate or guess
Avoid absolutes such as “never” or “always”
Avoid jokes, sarcasm, and edgy comments
Ask for breaks if needed to keep from becoming inattentive
Carefully examine documents, reports, etc., before answering opposing counsel’s questions about them
Ask for clarification of confusing questions
Remember: Nothing is “off the record”
Don’t waive your right to read and sign the deposition transcript
Procedural pitfalls. Throughout the deposition, attorneys may periodically tell the court reporter that they wish to have a discussion “off the record.” Nothing is off the record for you, however. If you make a statement when the court reporter has been told to stop, opposing counsel can summarize on the record everything you said during that time.
At the beginning or end of the deposition, one of the attorneys may ask if you wish to waive the right to read and sign the deposition transcript. Seek your counsel’s advice, but defendants usually choose to retain this right. Typically, you have 30 days to read the transcript and correct errors. Keep in mind that substantive changes beyond typos are likely to be the subject of intense cross-examination if the case goes to trial.9