How Depositions Make or Break a Medmal Defense

Narrator:
I’m Tom Augello and on this edition of Safety Net we are talking with two legal experts who help defendants in the Harvard medical system get ready for their appearances at legal proceedings. We’re going to talk about depositions and why they matter a lot when you’re sued. If a deposition goes well, you have a better chance of the whole case going your way. If it goes poorly, though, the case can be harder to win.

To give us the straight scoop on depositions when you are a medical malpractice defendant, we’re joined by attorney Lisa Wichter and Alex Terry. Lisa is a claims representative who helps clinician defendants through the entire legal process at CRICO. And Alex is a principal with Adler, Cohen, Harvey, Wakeman and Guekguezian defense firm in Boston.

Thank you both for joining us.

Lisa:
Great to be here.

Alex:
Thank you Tom. Glad to be here.

Narrator:
Let’s start with why anybody should pay close attention to depositions when they’re sued.

Alex:
Sure. So I’ll start. Tom number one, the most obvious sort of purpose or goal of a deposition is to put the witness on the record. Number two is—and this is particularly acute with the defendants in these cases who are the first doctors that are going again on the record—is for folks to discover the facts of the case, some of which, learned counsel perhaps excepted, aren’t apparent to everyone until we get a doctor, in a conference room or over Zoom to explain the medical or clinical concepts in the case to us.

So it’s educational, right? And we have to prepare our client where an adversary is taking their deposition, to be educational enough to present as competent but not so educational like they might be in their professional day job setting, to sort of educate the other side on the ins and outs or critical facts of the case. The goal of the deposition, in that vein, is to get out, and be short and sweet there, to answer the question that’s asked, to be polite, to present as the doctor who had the bedside manner where they answer the question that’s asked.

And the last sort of goal or purpose of a deposition is to take the impression of the witness. And I think, Lisa, is expert at sort of taking stock of witnesses and maybe has, some insights to share or experiences about, taking the measure of a witness at a deposition.

Lisa:
Yeah, I think so. A deposition is an opportunity for our providers to, kind of present themselves and leave the impression that they’re a competent and experienced and knowledgeable clinician. But also that they have a great bedside manner. And so you can see that cut both ways, I think.

In my experience, I just had a recent case where I had a physician who, at his deposition came across very grandfatherly and did a wonderful job kind of exuding warmth and kindness. And he was a pediatric provider. So it really he did such a lovely job and you looked at him and said, oh, that’s who I want to be, my provider. And then that was the impression left at deposition. And I think plaintiffs recognized at trial that was going to be the same impression he was going to leave the jury with. And lo and behold, that that is exactly what came to fruition at the trial. 

But it also happens in the other direction as well, where we’ve had, providers who come across as really intense or a little bit argumentative, maybe a little testy at their depositions and then, the patient or family’s attorney on the other side recognizes that they’re going to try and use that at trial. And put the clinician in a position where they also repeat that type of impression that that they leave with the jury. So it really is an opportunity at the deposition to kind of lay the groundwork for that. And, and it will kind of influence, I think, down the road at trial, how the plaintiff’s attorney approaches your examination during the trial.

Alex:
Many defendants, many clients, when we first meet them, even when they’re deposition is months or years down the road, they really look forward to that first opportunity to tell their story. They often have to be cautioned, frankly, to not try to win the case, right, in one day or an hour at their deposition. But it’s sort of the first major event, the first on the record opportunity, that all of our clients look forward to and we, as their counsel, begin preparing for from day one.

I don’t know if Lisa had any other perspectives on that.

Lisa:
Yeah. I think it’s, it’s a process. It’s a long process, as Alex mentioned starts from the very beginning. And your lawyer and your CRICO claim rep are here to support you throughout the entire process and get you ready for it.

Narrator:
Well, let’s talk a little bit about the preparation that goes into depositions. When does that happen?

Alex:
There’s parallel tracks, and I’ll talk in a second about what counsel does. But CRICO has an incredible support system and a whole sort of different parallel track for how they’re supporting their insureds through depositions. So, Lisa, that that’s the warm and fuzzier and nicer part of the process. Let’s start with that.

Lisa:
Yeah. So our goal at CRICO is really to support everybody through the entire case. But in particular, we recognized that the deposition, for example, is a stressful part of the case. And I think a lot of times there’s a lot of reinsurance in, in practice and preparation.

And so you’re going to be meeting with your attorney and, and that attorney is going to take you through the whole process, the reviewing the medical records, all those things. And get you ready on the facts. But the whole practicing part also is really helpful. So what we do at CRICO is we we coordinate with your attorney to, to basically have you get to do practice, rounds. We call them mock depositions. And we also can support you with folks who essentially are consultants and can give you some guidance on how to how do you present on video, on a zoom deposition, for example, or in person? You know, physically, how do you appear? We have a consultant who helps you practice breathing, the emotional piece of of going through the process, as well as the appearance part.

And so that is one step amongst many that we have you do to feel like you’re ready. And so that on the day of your deposition, when you show up and you complete that process, you walk out hopefully saying, ‘You know what? That actually was a lot easier than the preparation’. Those practice rounds that I did with counsel to get ready because I felt so prepared, and Alex, that you can probably go into a little more detail about what the steps are to that you do with your client to prepare.

Alex:
So Lisa is describing a bit of an all hands on deck approach, which is how it goes. When we’re in the last, steps of our intensive preparation and  right before the deposition, I’ll start at the like at the beginning, my view is the deposition prep starts the first time I meet with my client. I mentioned the examples of clients who are eager for that. Right? Or who just sort of want to download to me everything that they feel about the case, how they would tell their story if we put them on the record right there. Right? So I view that first meeting again, though it may be months or years away from an actual deposition, as the first iteration of what is critically important is a consistent story.

It’s the beginning of developing what I call mantras or safe-space answers to the critical clinical issues in the case. So again, just like the witness at trial needs to answer the question the same way they did at the deposition, ideally you’re telling me in confidence at that point, right, but you’re telling me at our initial meeting as you’re accountable, the same sort of themes that you’re going to testify to at your deposition that we’re going to present to a jury at the end of the day at trial.

So, again, I view it as this continuum of consistency that starts from day one. And I don’t want—I don’t let clients worry about their deposition too much if it’s so far off. But I’m downloading your viewpoint and assessing how you’ll explain it, you know, at a deposition and ultimately to a jury at the end, at the end of the day.

That continuum goes from that first meeting to completing written discovery, where you’re giving written questions to give answers to your deposition. And then finally, to trial. And so with all the, consultants and the mock examination, some of what we participate in, some of which is done through consultants, Lisa’s described most of the sort of prep right before a deposition. But I’ll just mention a lot of the rest of it that I do is just expectation setting. It can be silly. Who’s going to sit where. But our doctors, as you may attest Lisa, like to know what to expect. Like, like to have a picture. A picture of what the experience is going to look like before they walk into the room.

So honestly, just going through using our experience to educate them about what to expect, is a huge source of, relief, and expectation setting goes a long way, to make our clients comfortable and good witnesses.

Lisa:
The one thing I might add to, to what Alex just said is that it really is a process that we want your you to participate in. And even though it may take up time, sometimes a significant piece of, of time away from, from practice, putting in that work and really combing through your portion of the medical record, understanding what’s in the medical record, your own notes, the physician orders, the medication administration records.

All those things are really going to help you answer the questions that are posed to you at your deposition. So the whole process the practice and then the preparation, reviewing the records and, appreciating all those expectations that may exist for you. It’s all part of the process and getting you ready for it so that you feel prepared on the day of.

Narrator:
Okay, great. Let’s, let’s say a deposition goes well for the defendant. You get in, you get out. Stick to the questions. You leave a great impression. Does that ever see the light of day at a trial, or is it only the unsuccessful, ones that get used against you, that juries see?

Alex:
See, I think your question suggests the naked truth, Tom, which is a good deposition transcript goes in the drawer. Unfortunately.

Lisa:
I mean regardless of how the deposition goes in the end it’s a great way for us to, to understand, you know what? What are the strengths and weaknesses of of you as, a clinician in presenting your story to the jury in, in advance of trial, we now know, okay, at your deposition, x, y, z happened and you know, we kind of say, all right, strategically going forward, how are we going to get you ready for trial.

So then we’re evaluating that piece of it. So you know we have all the really helpful testimony that you’ve given which we evaluate. We we have experts review and weigh in on. And Alex, you can touch a little bit on that too. I know. But we’re really kind of pulling all of the pieces together and then strategically figuring out how best to present that case down the road at trial.

Alex:
But the bottom line, Lisa hit on it, in the last section was a great witness at a deposition, the other side anticipates and fears they’re going to see that same great witness at trial. And gives them pause about how they’re going to try their case, maybe whether they’re going to try their case.

Narrator:
Well, let me ask you, once a deposition is over, then what’s going to happen?

Alex:
So first you take a deep breath. There’s so much prep that goes into it. As I mentioned it’s an event, that’s sort of long foreshadowed in that defendants dread, or defendants look forward to, that run the gamut, for our client. But everyone universally exhales and breathes a sigh of relief that at least it’s over and a lot of work has gone into it, and our clients have to set aside a lot of time to prepare, emotional energy, to prepare to perform well.

The logistics that sort of close out the deposition phase, include your attorney  sends you a copy of the transcript, so you review it, you have an opportunity to, review it and make changes. They tend to be sort of typographical and not substantive, but you work through that with your counsel that there’s some somewhere that you think you weren’t just mis-transcribed, but misinterpreted or said something, in a way that you didn’t intend. So there’s an opportunity to again, digest what your testimony is, and begin to conceptualize how that will affect the case, while also considering whether, there are any adjustments that need to be made.

And again, that’s, I always tell clients at the beginning, here are the points in this long, longer than you would like, case where we’re going to really call upon you and ask for your active investment. And before trial deposition is sort of the largest investment. So, it is important to our clients weathering this process to take the time they need to reflect on having completed that sort of Herculean effort. Which is so important for the reasons we’re describing to the outcome of the case.

So I don’t want to, belittle the exhale. It’s important, to be able to do that, to move on with the case and, and to protect your peace through this process for, for our providers.

Narrator:
Well, after listening to all of this, it sounds like depositions are really important.

Lisa:
The most challenging thing is that, our clients, our defendants, are some of the busiest people on the planet, and we really need to help them understand the stakes for their case, allocate enough time to be prepared, and be there to support them. But we want to make sure everybody knows that if you work closely with your attorney and your claim representative to get ready for your deposition, or even your trial testimony, then you know that you’re doing your utmost to defend yourself effectively.

And we also just want to say that we want everybody to know that they shouldn’t hesitate to reach out to counsel, when any questions or concerns about depositions or anything else, frankly, for that matter, because it is a long road as, as Alex referenced, and we want to we might want to make sure you all feel supported throughout that process.

Narrator:
Great. Well, thank you both for helping us sort out the value of depositions to a clinician’s malpractice defense and the pitfalls. Lisa Wichter is a claim representative at CRICO. And Alexander Terry is a principal with Adler, Cohen, Harvey, Wakeman and Guekguezian defense firm in Boston. 
I’m Tom Augello for Safety Net.