Amazing! Five Do’s and Don’ts of Deposition Preparation
Information about Five Do’s and Don’ts of Deposition Preparation
Making a statement is a form of communication that is usually completely foreign to healthcare providers. Completely in control of her operating room, the surgeon may find herself completely lost in a conference room surrounded by lawyers. Some doctors are old hands at making statements, but for newcomers to the arena, emphasizing a few do’s and don’ts can ease the process:
- Spend the time you need to prepare. Most healthcare providers consider a statement annoying at best. However, for a defendant in a medical malpractice case, testifying is probably the most important contribution he makes to his defense. Preparation is key. A few weeks before testifying, take a few hours to review medical records and familiarize yourself with the facts of the case. Knowing the chart is the most important part of preparing for the deposit. Meet with your attorney as often as necessary. I’ve never seen a defendant win their case on affidavit, but I’ve seen many lose. These mistakes are almost always due to the witness being unprepared.
- Listen to the question, answer the question and stop talking. Testimony is not a forum for the accused to tell his or her story. It’s an opportunity for the other side to ask questions. The only role of the witnesses is to answer the questions put to them. It is extremely difficult for most Witnesses to bite their tongues when they exist something they’re dying to say that they weren’t asked about. Resist the urge to speak up! You will tell your story in court. If your lawyer thinks something has been overlooked that needs to be explained in the statement, he or she will ask you about it.
- Take your time. Don’t be afraid of long silences. After you finish the question, pause to think about your answer. The transcript will not say “Dr. Smith stared at the ceiling for five minutes before answering.” This pause serves two purposes: it allows you to be sure of your answer before you answer, and it gives your attorney an opportunity to object to the question . Don’t rush to get the statement over with as it will inevitably result in a careless statement that you will regret later.
- questions for clarification. If you don’t understand a question, ask the questioner to explain or rephrase it for you. Don’t try to answer what you want think they try to ask. Be sure of the question before you answer. If the questioner asks you more than one question at a time (you’d be surprised how often this happens), either ask them which question you should answer or make it clear which question you’re answering. Accuracy is essential because lawyers can twist sloppy testimony to their advantage.
- Be patient. You will be there for a while. Embrace that fact and be comfortable for the long haul. I recently had a three hour statement for a doctor whose only involvement in the case was a single phone call. Healthcare providers are used to identifying a problem, dealing with it, and moving on to the next problem. Lawyers behave differently and this can be extremely frustrating. However, you need to understand that many lawyers lengthen testimonies and repeatedly ask questions for this purpose. They want you to get frustrated. They want you to be impatient. If you look at your watch, you know it’s time to ask the really important questions. Just kill them with kindness. If you have to give the same answer over and over again, so be it.
- Try to be helpful. Healthcare providers are naturally helpful people. This personality trait has often led them into healthcare in the first place. But it can be liability under a deposit. Remember, your role is simply to answer the questions you are asked. That’s it. If the questioner obviously doesn’t understand something, it’s not your job to correct him or her as long as your answers are engaging and accurate. If your lawyer thinks that something needs to be clarified, he has the opportunity to ask you these questions. However, they may want to keep the other attorney in the dark. If your questioner finds himself there, it is not your job to lead him to the light.
- lose your cool The phrase “never let anyone see you sweat” is especially true of statements. Frustration and impatience, even anger, is to be expected and you can count on it. But never let anyone else see it. That is particularly true if the statement is videotaped. All the jury will see is you lose your temper. You will never see the four hours of urging that got you to this point. Nothing is more frustrating for a plaintiff’s attorney than a witness who spends hours calmly and confidently answering their questions. When they see they can’t reach you, it drives them crazy. Trust me. More importantly, this is the image you want to convey to the judges.
- Try to fill in the blanks in your memory. Consider this example: A lawyer asks, “Doctor, what risks and benefits did you discuss with the patient prior to surgery?” The doctor doesn’t even remember the patient, let alone the briefing. However, they have a routine conversation that they have with each patient. What is the correct way to answer this question? You’d be surprised how many witnesses will say, “I told her about the bleeding, infection, anesthesia, blah blah blah.” But that’s not an entirely honest answer. The correct answer would be something like, “I don’t remember what we discussed, but I know what my routine conversations are with each patient. Do you want to hear that?” Witnesses inevitably get into trouble when they testify about what they think they did as opposed to what they did recall They did. Stick to what you remember and don’t try to fill in the blanks.
- Anticipate the next question. Don’t try to figure out where the questioner is “going” with the questions. Just answer the questions asked. If you try to anticipate what the next few questions are going to be and beat the attorney there, you could lead him or her to an issue they never intended to address. listen to the question Answer the question. Stop talking.
- Guess. It never ceases to amaze me how many witnesses believe you to have to give an answer to every question, as if a testimony were a judicial test. If you don’t know the answer to a question, it’s perfectly okay to say you don’t know. In fact, it’s better than trying to pull an answer out of thin air. The same applies if you are asked for an opinion that is outside your area of expertise. It’s far better to say you don’t have an opinion or that the topic is outside your area of expertise than to guess the answer and be wrong.
And a bonus don’t:
6. Change your answer. Lawyers will ask you the same question five different ways for a specific reason. You want to see if your answer changes. If so, you’ll look like you don’t know what you’re talking about. Stick to your opinion no matter how many times the question is asked. As I said before, lawyers will try to take advantage of healthcare providers’ willingness to help. They know that if they ask the same question over and over again, one of two things will happen: 1) the witness will think they don’t have to answer the question correctly, so they will try to give the questioner the answer after which he seeks; or 2) the witness will give the questioner the answer they’re looking for just to get the whole damn thing over with. Don’t fall into both traps.
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