A certified court reporter administers an oath to the deponent and transcribes the testimony. The opposing attorneys generally are cordial with each other at the beginning and the questioning will appear relaxed. The initial relaxed appearance of a deposition may be misleading. The plaintiff's attorney might suddenly ask you a startling question, such as, "How many patients have died while you were doing this surgery?" An unprepared witness can easily be shaken by this tactic.
Your attorney will be with you throughout the deposition to raise legal objections, if needed, and to discuss the progress of the deposition with you during breaks. He or she will listen to every question and object to those that probe into privileged communications. Your attorney may also ask you questions to help you clarify a previous answer.
After a question is asked, allow your attorney time to interject. Your attorney can object to an improper question. When an answer would reveal privileged information, your attorney may direct you not to answer. You will not be able to consult privately with your attorney while an answer is pending, which highlights the importance of preparation.
Do not misconstrue silence to mean that your attorney is not advocating for you. Attorneys may only object to irrelevant or improper questions. The number of objections will probably be small.
Often the same question will be asked several different ways. The questioner may try to force you to be as accurate and precise as possible. If you make any statements that are inconsistent with your prior statements, the inconsistencies may be used to discredit your testimony. Completely honest and succinct answers leave less room for confusion.
Some standard questions will likely be asked at the start of your deposition. These are fairly straight-forward and not intimidating. They are asked to obtain basic information and to relax you. However, simple questions may be interspersed with "loaded" questions.
back to top
This type of question is often used in the beginning of a deposition. For example: "When were you first disciplined by a hospital medical staff for excessive mortality in this type of surgery? " This is likely to be asked in a context lacking any definition of what is considered "discipline" or "excessive."
If you anticipate such a question, you won't be thrown off guard and will be more prepared to respond appropriately. The caveat is to not be lured into a seemingly casual or nonchalant atmosphere created by the opposing attorney.
These questions include an inherent assumption. For example: "How long have you been performing this surgery in a manner below the standard of care?" If you are prepared for this type of questioning, you should be able to avoid the trap. Simply recognize the part of the question that is untrue, for example by saying, "As far as I am aware, I have always performed this surgery in a manner that complies with the standard of care."
These contain a statement of fact and an answer within its own terms. For example, "You've performed surgery like this on several patients, have you not?" Opposing counsel uses this type of question to get you to agree with a summary of facts and assumptions by putting words in your mouth. If any part of the leading question is incorrect, you should not answer "yes." Ask to have the question rephrased and/or clarified.
If you discussed specifics of the case with a non-privileged person (i.e., someone other than your spouse, risk manager, attorney, claim representative, or clergy) he or she may be subpoenaed by the plaintiff to recount the details of your conversation.
Avoid referring to any text as "authoritative." Once you agree that a certain text is an authority on a condition or treatment, then any discrepancies in your treatment of the patient and the treatment offered in the "authority" may be used against you. A better approach may be to explain that you refer to many authorities or that a source is persuasive and respected in the field rather than saying that it alone is authoritative. Also be aware that by naming or acknowledging that some one individual is an "authority," that person's opinion will prevail. The best response is to specify that no one person or book is authoritative.
Rather than agreeing to the opposing attorney's categorization, choose your own words to describe a colleague. Try not to refer to someone as an expert, but rather as a competent physician who is prominent in the field. If you acknowledge that a certain person is an expert, you may be held to the standard of care in their opinion.
Watch out for questions that are too broad. Ask for rephrasing and/or clarification. Keep your answers accurate, truthful, and as succinct as possible.
