DEPOSITIONS: What Your Lawyer May Have Forgotten To Tell You

by Julie M. Janeway, BBA, MSA, JD

Julie M. Janeway, BBA, MSA, JD, is from Little Victories™ Medical/Legal Consulting & Training in Onondaga, Michigan.

Introduction

If you are working as a healthcare provider in the US, chances are exceptionally high that you will at some point be called as a witness or a defendant in a medical malpractice, worker’s compensation, insurance, or other type of lawsuit. As lawyers, we tell our physicians, physician assistants (PA), and often our nursing clients as well: “It is not IF you get sued during your career, it is WHEN you get sued.” Given the litigiousness and blame-based nature of our society, many of you will be called upon to provide your testimony about a given set of facts at a deposition. Yet many healthcare providers are not even truly cognizant of what a deposition is, why they are needed, and their degree of importance in the litigation process.

What Is a Deposition?

We often refer to depositions as deps, depos, or even examinations before trial (EBTs). For some of you, unfortunately, depositions are old hat. If you haven’t yet experienced being a “deponent” in a deposition, the reality is–you most likely will at some point. A deposition is a legal device that allows the parties in the lawsuit to fish for information that the other side may be holding. After all, the point of a civil lawsuit is to determine the facts of the case, allocate fault if any, and return an injured party to as close to the position they were in before the facts occurred as possible. Depositions allow for the investigation of the facts, to determine credibility of the party or witness, assess the party or witness’s strength and performance at trial, and to provide for preservation of the testimony in case something should happen to a witness or party before trial can occur.[1]

That having been said, the most important use of the preserved testimony of a party or witness is to catch the witness at trial contradicting him or herself, stating inconsistencies, or all-out changing the story. This then shows that the person’s testimony cannot be relied upon as credible and truthful, and the jury will give that person’s testimony much less weight in determining the outcome of the trial.

Rules of Deposition

When taking a deposition, the rules are a little less stringent then when questioning a party or witness at trial. In a deposition, the questioning is designed to gather any information that can reasonably lead to relevant evidence. The Federal Rules of Evidence state that “relevant evidence” is any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.[2]

The burden of proving the plaintiff’s case through the use of relevant evidence is on the plaintiff, or more accurately, on the plaintiff’s attorney. The plaintiff’s attorney is the one who has to tip the scales of justice in their direction by putting forth more evidence that proves the plaintiff’s story is true than the defendant puts forth that the plaintiff’s story is not true.[3]
At a deposition of a witness or defendant called by a plaintiff’s attorney, the plaintiff’s attorney bears the burden of getting the information out of the deponent. The deponent is only obligated to answer the questions that are asked, and no more. The deponent is not required to attempt to find the truth, nor settle the case.[3] To help those of you who will no doubt spend time in the deponent’s chair, I have assembled a little list of dos and do nots that should help you out; these details are ones that many lawyers forget to tell their clients and witnesses about. Your knowledge of these details may save you—and them—a lot of grief later.

ANSWERING QUESTIONS

If you do not want it recorded, do not say it. Everything is being recorded by a court reporter at a deposition, and only your words are taken down unless it is a video deposition. So you cannot nod your head in agreement or gesture for emphasis because it cannot be recorded. Use your words wisely!

Count to five before you answer any question except “What is your name?” By counting to five before you answer, you have time to recap the question in your mind, make sure you know what question you are answering, formulate the basis of an answer, and give your attorney time to object if necessary before words start tumbling out of your mouth and onto the record. You can take as much time as you like before answering a question. There is no land speed record to beat.

Answer only the question that is being asked. Listen carefully to what is being asked and answer only that question. For example, if I ask you, “Do you know what time it is?” the answer is NOT, “Yes, it is 4:15!” The answer is “Yes” or “No.” Giving the actual time is too much information. You weren’t asked “What time is it?”

Say as little as possible to properly and accurately answer the question. If “yes,” “no,” or “I do not recall” will suffice to answer the question, then go with that. Do not clarify, ad lib, quantify, qualify, or define. If those things are needed to answer the question in one word, then have the attorney clarify the question before you answer.

Use “I do not know” in very limited circumstances. As medical professionals, you are charged with “knowing.” You are supposed to have specialized knowledge, or know what was going on at all times, or know how to respond to a situation. Only use “I do not know” when you really do not know something, like who is the Interior Minister of Mauritania. If it is something you truly have no knowledge of, then say so. If you cannot remember, but you did have knowledge of it at one time, or could be reminded by seeing a record or something, then simply say “I cannot recall.”

Wait for the entire question to be asked, and do not think about where it is going. Do not anticipate. Once the whole question is out, count to at least five and then begin your answer. Do not worry about outwitting the attorney or figuring out the purpose of a question; just answer what was asked in as few words as possible and move on.

If you do not understand a question, ask the attorney to clarify it. If you think that you might be able to answer a question many different ways depending on what the attorney meant, do not give all the possible answers. Ask the attorney to clarify the question so you can use as few words as possible to answer it. For example, if the attorney asks, “Was he charting after surgery?” the deponent might be wondering which “he” the attorney is referring to, as there were four males in the recovery room at the time. Ask for clarification. Do not assume that the attorney is referring to the surgeon. Once the attorney clarifies, for instance, that he meant the recovery room nurse, then you can answer “Yes” or “No.”

Do not answer compound questions. Your lawyer should object if the attorney asks a question or set of questions that call for more than one answer at a time. If your attorney does not object, still ask for the questions to be broken down into single questions and asked one at a time. Example: “Where were you when the patient went into respiratory distress and why were you gone?”

Do not ever guess or estimate. Simply answer: “I will not speculate about that.” The case should be dealing in facts, not speculation. That’s just a fishing expedition because they are hoping to make you sound unintelligent.

Do not answer questions about the records without seeing them. Always use the opposing side’s records for reference, as they may give a clue to what they have identified as important. It is not up to you to have records at your fingertips unless you were subpoenaed to bring them with you. Never rely on your memory when you can look at the record and give accurate answers.

Never answer questions about “why” someone else did or did not do something. Again, do not engage in speculation. Unless you have direct knowledge about the “why” of it all, do not answer this question, and do not divulge the information unless asked directly and specifically about it.

If you are confused about a question, do not give the deposing attorney choices about what he or she may have meant. They may not have even thought of those choices. Do not ask: “Did you mean A or B?” They may have originally only meant C and never even thought of A or B. But now that you mention it … perhaps asking A or B benefits them. Just ask for clarification as to meaning.

If your attorney instructs you not to answer, then do not answer. If you’ve already started speaking, then stop immediately.

Do not assist the other side; it is not your job. If you can see the attorney dancing all around the question you know he or she is trying to get at, do not assist him or her in getting there. That is not your job. Only answer the specific questions asked of you. For example, whether or not you agree with or like or dislike Bill Clinton, the fact of the matter is that in his deposition, the prosecutors interviewing him did a poor job of asking him what they really wanted to know. It was not up to him as the deponent to say, “Do not you really mean this?” He answered only the questions asked of him. So remember Bill Clinton.

Do not answer statements. Only answer questions. Let’s say that the attorney says in a heated tone, “Everyone knows that bariatric surgery is extremely risky and has a high mortality rate!” Do not comment! That is not a question. It is a statement designed to engage you and get your emotional response.

Do not second guess your answers if the attorney asks you if you are sure or reacts negatively. Make sure that you are comfortable with what you put on the record the first time, and then do not backpedal. That is one of the reasons you count to at least five before answering—so you can think about what you are going to say. Say what you mean, and mean what you say–the first time!

Be accurate in your word selection. Do not say “coordinate” if you mean “manage” or “organize.” Use the correct word. Depositions can go on for hours over the inaccurate use of a word or phrase. Say what you mean, and mean what you say.

Do not use acronyms and abbreviations. Use the entire title or phrase. Do not say “CCU,” say “Critical Care Unit.” Do not say “ASBS,” say “American Society for Bariatric Surgery.” Some acronyms and abbreviations are common, like EKG, but most are not. Do not assume that anyone, including the court reporter, knows what you are talking about. Be clear and accurate.

Do not keep answering the same question again and again. If your attorney does not object to a question having been asked and answered (sometimes we lose our concentration, too), and you are sure you have answered this same question before, then simply state that you have answered the question previously and that your testimony on the record stands. If you keep answering it, you may change your wording a bit here and there, or you may think they are asking something else and answer it entirely differently, and then your credibility or voracity comes into question.

Know what is and is not privileged information. Your attorney should take care of this for you, but again, we get distracted, too. Any time you have a question about privilege, ask to speak privately with your attorney.

Do not nod your head in agreement with their questions or statements, and do not fill in their blanks if they cannot find the words. Simply sit still, wait for the question to be phrased, and leave the attorney to his or her own devices in finding the right words to frame the question. It is not your job to help, just to answer what was asked.

Do not let anyone rush you. Be accurate and take your time. This is not a matter to be rushed.

Do not argue. No matter how much you are provoked, you must remain cool and collected. If you feel things are getting out of control, declare that you need a break, or that you need to speak with your attorney, or that you need to go to the washroom. Your attorney should assist you in getting out of the room even if the deposing attorney objects, whines, complains, or throws a fit.

Once you have given an answer or statement, do not let the attorney rephrase what you said to try and get you to second guess your answer. Simply state that the rephrasing is inaccurate and that you will stand by the statement that has already been put on the record.

It is okay to ask to have the record read back. Normally an attorney will request this, but the deponent can also request to have a question or an answer that has been placed in the record read back. It is your record—use it if you have to, but do not appear argumentative.

Make no assumptions about anything. Do not assume the other attorney is nice, mean, smart, dimwitted, informed, ignorant, diligent, lackadaisical, or anything else. Always be accurate and truthful in what you state and you will not have to worry about assumptions being wrong.

Smile. It is very hard for an attorney to keep up a façade of nastiness in the face of pleasantness. A jury would respond well to a smile, and you should always comport yourself as if there is a jury sitting right in the room with you.

Look the attorney right in the eye when answering. Many people find this difficult to do, including attorneys, but if you look the attorney dead in the eye, with a pleasant look on your face when answering, you will throw that attorney off kilter more than a few times during the dep. Shifty eyes and someone who will not look you in the face are sure signs of someone who is nervous, lying, or at least very unsure of what they are stating.

Speak slowly, calmly, and confidently. There is no race in the deposition. Most go hours, and sometimes days. You are done when you are done, so take it from the tortoise—slow and steady wins the race. It is a marathon, not a sprint. Pace yourself.

At the beginning of the dep, ask the deposing attorney if you can call him or her by that person’s first name. It is hard to disassociate yourself from someone who keeps talking to you like they are your golfing or tennis buddy. Plus, it shows the attorney that you can quickly build rapport, something that will win you huge points at a trial, and something they will have to work to overcome if you get to testify at trial.

Know your records and facts inside and out. Make sure they are not going to surprise you with anything. Know what is there, and more importantly what is not. Also, never inadvertently say that you are sure of something because you have virtually memorized the records. We do not want to rely on your memory alone, we want to know that you are familiar with the records and you can testify to what is in them or what is not. We only really need your great memory skills if you are testifying about facts and events that have no records.

THE PSYCHOLOGY OF THE DEPOSITION

Depositions are, in fact, mental games. The deposing attorney will be trying to play games with you, and so it is only fair that you get to play a few back. Here are my best tips:

Wear conservative clothing, but do not necessarily wear drab colors. Traditional colors include navy, black, grey, and brown. I always suggest that my clients throw in some color to show they cannot be run over. A maroon or plum shirt for men, a red cardigan or jacket for ladies, yellow, or even some hunter green. Men should wear a traditional power tie—a small print tie in traditional colors or a regimental stripe. Solid color ties are good, too. Ladies, keep the jewelry small to medium, and leave the bohemian dangle earrings at home for one day. No crazy hairstyles, no wacky shoes, no goofy-colored hose, and for goodness sake, no backpacks! We are going for credibility and professionalism here!

No white lab coats unless you are literally attending the dep in between rounds, clinics, or lab classes. Everyone knows what your profession or occupation is; we do not need the costume to tell us. Where the lab coat creates confidence in patients, it creates a barrier in the deposition that does not need to be there. Leave it at home. Also, if it is a video deposition, the white coat will just burn right onto the screen and blind everyone watching it. Remember my motto: Do not tick off the minds you are trying to persuade!

Imagine a jury of 12 people in the room with you at all times. Remember that you are not only giving sworn testimony that can and most likely will be used in court, you are being assessed for your strength and credibility at trial. Settlement offers may hinge on your testimony. The viability of a case may hinge on your testimony. Even though your appearance, gestures, tone, expression, and demeanor may not be recorded in the written record, all the people in that room take that into consideration when looking at the larger picture.

Remember whose deposition is being taken here. The deposing attorney will sometimes act like it is his or her dep because they are paying for it. The reality is, it is YOUR dep. It is your testimony, your credibility, and your reputation. If you need a break, then state clearly that you need a break. It is hard to concentrate when all you can think about is having to go to the bathroom! Your attorney should always support you in getting out of the room if you think you need to leave. If the deposing attorney talks too fast, then say so. Be cooperative, but do not be a pushover.

Be in control of your emotions at all times. By this I do not mean you cannot cry if the situation actually calls for it. Say you are a nurse who worked a long time with a cancer patient whom you became very close to before she died. It would be okay to shed a tear or two if talking about her last days. Hysterical bawling, however, would not be okay. Emotions are fine, but they must be appropriate to the time and place. If you are being pestered and battered by the attorney about a point and you just feel like you are going to blow up, you need to get out of the room and get it under control or you will be sorry you did not. If there is one emotion that transfers to the written record, it is anger. Tell your attorney ahead of time that if you need to get out of the room, they need to back you rather than tell you to wait until a better breaking point in the dep.

Break the rhythm of the other attorney if it feels like they are too much on a roll. Answer even more slowly, more accurately, more pointedly. Ask for clarification even if you are relatively sure you know what they are asking. Take a break if you can. Ask to see a record again if appropriate. Break the rhythm and give yourself a break, too.

Never, ever cover for someone else. This should go without saying, but unfortunately it happens all too often. When you entered the medical field you took an oath to “first do no harm.” That means that you do not aid people who break that oath either. I do not care how they’ve threatened you, or coerced you, or even blackmailed you. If you are not willing to walk away from that job the moment you take it in order to be honest and truthful in all dealings with and for patients, then you should not be in the medical field. The truth will always be your best shield against onslaught. You do not have to necessarily be out there snitching on someone, but if asked if a coworker counted the instruments after surgery and he or she did not, then do not say the coworker did. Friendships do not run that deep. This is not your garden club or a golf bet. This is the law. If you do not think this is serious, go look up the definition of perjury.[4]

Do not drink a lot of caffeinated beverages during the dep. I know that sounds stupid, but I actually had a dep where the doctor was on his fourth pot of coffee by 11:00AM. The opposing attorney took note and began to ask him about his caffeine use. She asked how much he drank each day, how fast, did he have that much on the day of surgery, did he drink while in surgery, did he get jittery, forgetful, etc. It looked like if he did not have enough caffeine, he was a jittery mess in withdrawal while performing surgery. If he had his quota, he was a stoked-up flying mess while performing surgery. So drink water at the deposition!

Make sure your attorney knows everything. Surprises, while fun for a birthday or anniversary, are not the stuff of lawyers’ dreams. Generally speaking, surprises do not make for happy lawyers or good outcomes. Be candid and trust your attorney to deal with any negative aspects of your testimony or actions. We are trained to do that. Do not make your lawyer have to start bailing water when he or she is under the impression that it would all be smooth sailing. We may not have a bailing bucket handy, and we could all find ourselves in deep water up to our necks!

References

1. Weinstein, Mark I. Introduction to Civil Litigation. New York, NY; West Thomson Delmar, 2005.
2. Federal Rules of Evidence (FRE) 401.
3. Stopp, MJ. Evidence Law in the Trial Process. New York, NY; West/Delmar Publishers, 1999.
4. A false statement knowingly made in a proceeding in a court of competent jurisdiction, or concerning a matter wherein an affiant (or deponent) is required by law to be sworn as to some matter material to the issue or point in question. The willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of the evidence, either upon oath or in any form allowed by law to be substituted for an oath. Black, HC. Black’s Law Dictionary, SIxth Edition. New York, NY. West Publishing Company, 1992.

Additional Reading

1. Wollin DA, Millsom GW. Everything You Ever Wanted to Know About Depositions But Your Client Could Not Afford to Research. Rhode Island Bar Journal 2002;50(5);30–5.
2. Preparing for Your Deposition. The Cochran Law Firm Website. Available at: www.thecochranfirmno.com/resource_detail.asp?id&5&resource=22&detail=100. Accessed March 16, 2007.
3. Preparing the Corporate Witness. The Decisionquest Website. 2003. Available at: www.decisionquest.com/litigation_library.php?NewsID=203. Accessed March 16, 2007.
4. Rice B. Malpractice: How to Survive a Deposition. Medical Economics Magazine [serial online] 2007. Medical Economics Magazine Website. Available at: www.memag.com/memag/article/articleDetail.jsp?id=163096&pageID=5. Accessed March 16, 2007.
5. Presenting Witnesses for Deposition. Houston Litigation Blog Website. 2006. Available at: www.houstonlitigationblog.com/2006/12/articles/jury-trials/presenting-witnesses-for-deposition. Accessed March 16, 2007.

Category: Past Articles, Risk Management