Familiarize yourself with the types of questions that may be used to confuse you. If you are aware of the potential pitfalls and know how to handle them, you will be better prepared to answer appropriately.
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If opposing counsel asks, "Did your lawyer tell you what to say at this deposition?" you may answer, "My lawyer told me to tell the truth." Do not answer questions about the content of any conversations between you and your attorney. Such conversations are privileged and not subject to disclosure. If the topic is raised, give your attorney an opportunity to object.
Do not interrupt the questioner. Do not finish his or her sentences or try to predict what will be asked of you. Your answers must be appropriate for the questions as asked, not as they should have been asked.
The tendency is to assume what opposing counsel meant and then answer. If the plaintiff's attorney asks a question that does not make sense to you, ask the attorney to restate the question.
Think (silently) about the question before responding. A pause also gives your attorney a chance to object to the question, if needed. If you answer before your attorney has a chance to object, you might be volunteering information that could damage your defense.
Speak directly towards the court reporter transcribing your testimony. "Yes," "No," "I do not know," "I do not recall," or "I do not understand the question" are often the only appropriate responses. While they may frustrate the questioner, they are valid and acceptable.
For example, the ideal answer to "Do you have the time?" would be, "Yes." You do not need to expand by replying, "Yes, it is 3 p.m." Take the position that each word will be scrutinized. Too much information, too soon, gives the other side time to plan additional questions. Longer answers make for a longer deposition.
If you are unsure or do not know the answer to a question, say so.
You probably will not be able to remember every detail relating to the incident or patient at issue. If you cannot remember something, say so. Assumptions or estimates could come back to haunt you.
Ask to look at the records or charts in question before answering. Be accurate in your reference to records, rather than guess about important facts.
The facts will speak for themselves. Criticizing or blaming another clinician is counterproductive. If clinicians appear to be fighting among themselves, a jury might conclude that everyone was at fault.
Some attorneys deliberately allow long gaps in questioning in hopes of making you volunteer information. If your answer is complete, do not feel pressured to continue talking. The transcript of the deposition only shows the words spoken, not gaps or silence.
Do not risk offending anyone who might see remarks in the transcript regarding gender, race, national origin, etc.
"Not that I can remember" is a better answer than, "No, never." Never or always provide the opposing attorney an opportunity for strong cross-examination.
Avoid mention of documents unless opposing counsel refers to them first. If you cannot recall information without looking at a document that has not been introduced, indicate only the fact that you do not recall.
Distinguish between questions concerning the alleged incident and questions concerning usual, or general practice. Do not raise your personal preference to the level of protocol or regulation.
You may be pressed to answer two or more combined questions with one "yes" or "no" response. Insist on the opportunity to answer each one separately.
Pay attention to questions that resemble those you were asked in any prior depositions or in previous testimony in the same court. Opposing counsel may be testing to see if you give a similar response or state a different opinion. The opposing attorney may ask the same question in many different forms to try to elicit varied and inconsistent answers.
The opposing attorney will carefully plan the timing of the most important questions. Be aware that they may be saved for the end of the deposition or posed at a time when you are flustered or tired.
The opposing attorney might summarize your previous statements to persuade you to agree with something that is not completely true. Do not agree with a summary of your testimony unless it is exact.
Do not argue with your attorney or the opposing attorney. Remember that your deposition testimony could eventually be heard (as transcribed) by a jury. Attorneys are generally pleased if the opposing witness demonstrates anger or rudeness. A negative attitude may be magnified in writing. An angry or snide comment may sound twice as bad when read from the transcript. Stay calm and in control of your emotions. A witness who is polite, and sincere can discourage the plaintiff's attorney.
Even though the questioning may seem far too extensive or irrelevant, control your expressions. If you feel tired or ill, a short break or the adjournment of the deposition until another day can be arranged.
The response to attempts at humorous or light comments is likely to be "Do you find this funny, Doctor?"
