Thorough preparation normally requires two or three meetings, each lasting 2 to 4 hours. Every potential question needs to be anticipated and evaluated. Keep in mind that every word of your testimony will be recorded by the court reporter, so concise and careful speech is a must. The ideal preparation is for your attorney to focus on your thought process and challenge your initial answers in role-playing sessions to expose any potential problems.
After the deposition, the best compliment you can pay your lawyer is to tell him or her that 1) there wasn’t a single question that surprised you and 2) the preparation was more grueling than the deposition.
As in other settings, half the battle is what you say, and the other half is how you say it. Both content and delivery are key.
3 Maintain your composure
A deposition is not the time to “get something off your chest.” Nor is it a license to tell the other guy “a thing or two.” A lawsuit can be emotionally devastating and exhausting—but if you need encouragement or feel an urge to vent frustrations, do it with your lawyer in private. The deposition room is not a place where weakness is rewarded.
There is no judge or jury at a deposition. Even if you give stellar and inspiring testimony, nobody is going to pronounce you the winner in the lawsuit. However, you can do serious damage to your case by making statements against your interest or becoming emotionally unwound.
The plaintiff attorney will probe your thinking, medical judgments, competence, and treatment decisions and performance. A good lawyer will spot any sign of inconsistency or weakness and dig deeper and deeper until you are caught between the horns of two seemingly inconsistent positions.
Composure is especially critical when a deposition is recorded on videotape. The Internet contains videos of a number of emotional deposition eruptions that, when replayed to a jury, undoubtedly produced catastrophic results.
Your dress and demeanor must remain professional whether or not the deposition is videotaped. A suit or sport coat and tie for men and similar professional attire for women are a must. Wearing a lab coat over a suit is generally only credible if the deposition is taking place in your clinical office or in a hospital.
4 Listen to the question
Each question is critical; listen closely. This may seem like a simple rule, but it is one that is frequently broken.
Listen to the question, and then take a breath before you answer. This pause will give your brain time to analyze the question and prepare a reasonable answer. It will also give your lawyer time to make a verbal objection, if one is warranted.
Make sure the question is intelligible before you begin to answer it. If you don’t understand it, say so and ask that it be rephrased.
If the question is medically inaccurate, point out the inaccuracy. For example, if the lawyer posits that preeclampsia is contagious, correct that statement and ask for the question to be rephrased. In cases involving birth trauma, the phrases “fetal stress” and “fetal distress” are often intermingled.
In the heat of a deposition, you will feel pressured. Don’t let that pressure cause you to blurt out an inaccurate or inappropriate answer to a poorly phrased question.
Listening to each question and taking a breath before responding will also keep you from becoming involved in a rapid-fire question-and-answer flurry with the opposing attorney. Such flurries rarely end favorably for the physician.
Listen to the question. Take it one question and one answer at a time.
5 Stop, look, listen
If your attorney makes an objection, stop talking. Don’t answer the question until your attorney gives you the go-ahead.
Sometimes a question is so inappropriate, you can rightfully refuse to answer. For example, an aggressive attorney might ask, “Doctor, am I correct that in medical school they taught you not to leave sponges in the patient’s belly?” Or, perhaps, “Doctor, did you think it might be a good idea to identify the ureter before you went slicing away at my poor client?” Such questions are, at times, merely designed to anger and impair the doctor’s focus.
In most instances, any objection from your lawyer will concern the technical phrasing of the question, and you will be instructed to answer.
Look at your attorney. Listen to the objection. The nature of the objection may give you valuable insight as to whether the phrasing of the question poses risks that are not readily apparent.