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.
TABLE 2
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 —learn what documents to bring —understand opposing counsel’s style and personality —prepare for difficult questions —consider holding a mock deposition |
| 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).