During your deposition in a malpractice suit, would you know how to answer if the plaintiff’s counsel asked you: “Doctor, are you saying it was impossible to foresee Mr. Jones’ suicide?”
Ninety percent of malpractice cases are settled before trial, and the deposition often is the turning point.1-3 Your answer to tricky questions such as this could favorably affect a critical stage of litigation—or 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 deposition’s effectiveness may determine whether the settlement is $300,000 or $1 million.
Don’t go to a deposition unprepared. This article offers guidelines to help you anticipate many different scenarios and includes examples of honest, skillful answers to 8 difficult questions (Box 1).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 Discovery’s rationale 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 the 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. Plaintiffs’ 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
Honest, skillful answers to 8 tricky deposition questions
- The Impossible Dream
- The Hypothetical
- Invitation to Speculate
- Did I Say That?
- The Authoritative Treatise
- The Tyranny of Yes or No
- Convoluted Compounds
- Give Me More
Choosing a site. Most depositions take place in a conference room in one of the attorney’s law offices or at a neutral site. Avoid the temptation to schedule the de-position 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.”
Table 1
5 goals of the plaintiff’s attorney at a deposition
| Lock down testimony for trial |
| Scrutinize defendant’s qualifications |
| Size up defendant’s effectiveness as a witness |
| Probe defendant for bias, arrogance, or hostility |
| Learn as much as possible (‘fishing’) |
Prepare, prepare, prepare
Your emotional stress will probably wax and wane during the lengthy litigation process.13,14 Knowing what to expect and being well-prepared for the deposition may relieve some anxiety.
Review the case. At least twice, carefully review the entire database—including medical records and other fact witness discovery depositions. Perform 1 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 2 predeposition conferences with defense counsel.