Personae sometimes adopted by plaintiffs’ attorneys to obtain information at deposition
“Mr./Ms. Friendly” Some attorneys look for an opportunity, before the deposition begins, to show that they are “friendly” and not to be feared. Remember: Discussions with opposing counsel without defense counsel present are inappropriate.
“Eager Student” Opposing counsel may play the “eager student” to massage your ego and pave the way for long narratives and volunteered information.
“Counselor Clueless” Opposing counsel may appear so ignorant of certain facts that you can scarcely resist jumping in to educate him or her.
“Mr./Ms. Silent Treatment” After you give a brief, honest answer, opposing counsel may sit silently as if expecting a more substantive response. Resist the temptation to fill the silence.
CASE RESOLVED Direct question at deposition
You reply to plaintiff’s attorney: “I don’t know how the rupturing of membranes in this case could have been foreseen.”
Honest, skillful answers to 8 tricky questions at deposition3-7
THE IMPOSSIBLE DREAM
In law, there is a distinction between possibility and probability. The law considers anything possible, but something isn’t probable unless it is more likely than not—that is, when expressed mathematically, its chances are ≥51%.
Q. Doctor, are you saying it was impossible to foresee Ms. Jones’ preterm premature rupture of membranes?
A. I don’t know of any way that the rupturing of membranes could have been foreseen. It was an unfortunate event that was not possible to foresee.
THE HYPOTHETICAL
When confronted with questions containing a hypothetical, identify the hidden assumption before answering.
Q. Doctor, with a depressed pregnant patient, would you agree that the standard of care requires you to…?
A. I can’t agree with you that, in this case, we are talking about a depressed patient. Do you still want me to answer the question? OR
A. I can’t answer that based on the few facts you’ve given me. I’d need to examine that patient first.
INVITATION TO SPECULATE
Refrain from speculating, especially when you’ve been presented with an incomplete clinical picture.
Q. Doctor, is it fair to say that a patient with this history should be referred to a specialist in high-risk pregnancy?
A. I really can’t speculate based on that limited information—I’d just be guessing.
DID I SAY THAT?
Opposing counsel may mischaracterize or distort your testimony by attempting to paraphrase what you’ve said.
Q. Now doctor, as I understand it, what you’re really saying is that the patient…?
A. No. OR
A. No—that’s not an accurate summary of what I just said.
THE AUTHORITATIVE TREATISE
Opposing counsel wants you to acknowledge a specific piece of literature as ‘authoritative’ in gynecology, so that counsel can then impeach you at trial with points from the literature that contradict your testimony. Although you may be made to look foolish if you refuse to acknowledge anything as authoritative, that usually is the safest course.
Q. Doctor, do you accept Williams Obstetrics as an authoritative reference in your field?
A. It is certainly well-respected, but the entire text can’t be considered authoritative. OR
A. Significant portions may be authoritative, but I would need to see the portion in question to be able to answer your question.
THE TYRANNY OF YES OR NO
In an effort to control you, opposing counsel may demand only “Yes” or “No” answers. Listen closely to each question, and determine if you can convey the whole truth with “Yes” or “No.” Asking to further explain to avoid giving a misleading answer will make opposing counsel appear defensive if he (she) does not agree.
Q. Doctor, please answer the question; it requires only a simple “Yes” or “No.”
A. I cannot answer that question with only a “Yes” or “No.” Would you like me to explain? OR
A. A mere “Yes” or “No” answer to that question would be misleading. May I explain?
CONVOLUTED COMPOUNDS
When opposing counsel asks you a double- or triple-jointed question, ask her to reframe or break down the inquiry into simpler questions.
Q. Doctor, would you agree that a woman with a family history of diabetes who is taking…should be tested for…at least once a month, and that if there is evidence of…then the standard of care requires you to…?
A. Please repeat those questions again, one at a time.
GIVE ME MORE
Opposing counsel may try to “fish” for more information. You are under no obligation to make his job easier. Answers that contain a qualifier are useful.
Q. Doctor, to your knowledge, have you told me everything you consider important about your patient’s death after she hemorrhaged?
A. I have told you all the information I can remember at this time.