There is a saying among trial lawyers: “A good deposition won’t necessarily win your case, but a bad deposition will surely lose it.” In the trial of a medical malpractice case, there is nothing more important than your deposition.
The first three rules to remember before giving any deposition testimony are: (1) Prepare! (2) Prepare! (3) Prepare! Be sure to arrange a pre-deposition conference with your attorney to review pertinent dates, facts, circumstances, issues and conclusions regarding your case. Cancel your schedule the night before and on the day of the deposition, and try to rest and relax. If for some reason you can’t prepare, are worried about your command of the issues and facts, or are missing information, X-rays or records, ask your attorney to reschedule the deposition.
Do not underestimate opposing counsel. You may know more about neurosurgery, but he or she has been trained to discover and exploit doubt and inconsistency. Wrong or inconsistent deposition testimony can be made to appear as either a lack of appreciation of critical issues or intentional misrepresentation.
Working closely with your attorney is critical in order to excel at your deposition. In fact, if your team’s work product is good enough, there might not be a trial and the plaintiff may settle or drop the case.
These 10 tips for excelling at your deposition also may be helpful:
1. Be attentive and alert: Sit up straight; no slouching. Forcing yourself to be attentive will keep you focused and listening.
2. Be sincere: Sincerity always shines through. Your character and demeanor are being evaluated by opposing counsel.
3. Be humble: Avoid over-advocating and boasting. Use your usual vocabulary, but don’t be condescending or appear ashamed of your education.
4. Be an expert listener: Physicians can sometimes be bad listeners outside of clinical situations, and they have a tendency to appear opinionated. Listen to all questions completely. Pause and understand the question, think before you speak, and then answer. Never answer a question you do not understand.
5. Always tell the truth: It is always easier to remember facts than interpretations, assumptions or rationalizations, which can cause inconsistencies that imply untruthfulness. Concentrate on addressing dispositive issues effectively and completely, which helps to establish credibility. No one is expected to be perfect, to never make a mistake or to be all-knowing. Don’t be afraid to admit your lack of knowledge.
6. Do not speculate: No one can predict the future. Never estimate or make guesses about potential circumstances.
7. Do not volunteer information: Listen carefully and then answer only the question asked, preferably in as few words as possible. Resist the temptation to fill conversational voids with unsolicited opinions.
8. Maintain your composure: Don’t react to the aggressive questioner or be lulled into a false sense of security by the mild-mannered questioner — the old good cop, bad cop routine. Don’t argue with opposing counsel; leave that to your lawyer. Concentrate on being attentive, listening and remaining unemotional.
9. Be courteous and gracious: Be sincere and respectful, especially toward parties in the litigation, opposing counsel, members of their staff and, if present at any time, the judge and jury members.
10. Trust your lawyer: Realize that your counsel, who has more experience in legal matters than you do, usually will be able to anticipate your anxieties and correct any mistakes you might feel you have made. If you have worked with and feel comfortable with him or her, you should be able to come up with a strategy together to prevail in your defense. Never disagree or argue with your attorney outside of private conversation.
Your deposition is truly the most important part of your preparation for your medical defense. You will be under careful observation by two lawyers: one attempting to solicit weaknesses and exploit them to your defeat, and the other attempting to evaluate your demeanor and strengthen your arguments so that you will prevail at trial.
It cannot be overstated that under these circumstances you must work diligently and closely with your attorney, who will help you to be a strong witness. You must inform your counsel of any shortcomings you may perceive in your conduct leading to the current litigation. You must share all concerns you may have with regard to your defense and anything that may have a harmful effect on the outcome of the case. If your attorney is aware of all potential problems that may affect your defense, strategies can be developed to address them appropriately. Above all, don’t rush into a deposition to “get it over with.” Prepare!
Stanley W. Fronczak, MD, JD, FACS, is a neurosurgeon with West Suburban Neurosurgical Associates SC, Hinsdale, Ill., and chair of the Medicolegal Committee of the Council of State Neurosurgical Societies.
Related Medicolegal Programs
During the AANS Annual Meeting April 22-27 in San Francisco, Dr. Fronczak will participate in two programs: the practical clinic “Preparation for Medical/Legal Testimony,” on Sunday, April 23, and the breakfast seminar “Medical Liability: How to Develop an Action Plan,” on Tuesday, April 25. For Annual Meeting details, visit www.aans.org/annual/2006.