Proper understanding and preparation are essential to effective deposition skills

B. Sonny Bal

Lawrence H. Brenner

Disputes are a fact of life, and in the practice of medicine, with its inherent uncertainty, disputes can sometimes manifest as medical negligence lawsuits. Some commentators believe that there are too many lawsuits related to claims of medical malpractice, and that the legislature needs to limit patient access to legal recourse, or limit economic damages arising from medical lawsuits. Regardless of what side one takes in this debate, the fact is that most orthopedic surgeons will face a medical malpractice lawsuit during their professional careers.

An important component of lawsuits relates to deposition testimony. This article is designed to explain what depositions are, their roles in medical negligence lawsuits, and how you can prepare and excel at giving depositions. At the basic level, a deposition is the oral testimony of a witness, reduced to a written record that is saved for later use at trial. More fundamentally, depositions are one component of a legal tool called discovery.

U.S. jurisprudence is based on a model that favors litigants settling their disputes without resorting to a court trial. The system encourages, and indeed requires, disputing parties to exchange all relevant information about the dispute, so that both parties can understand fully the position, and attendant strengths and weaknesses of the other as they relate to the disputed matter. The logic is that each side can assess the probability of success or failure at a future trial and use that information to arrive at some rational settlement amount upon which everyone can agree. While reality is more complex than this idealized scenario, it is true that most lawsuits in the United States will rarely reach the stage of trial. Even when legal disputes end up in trial, our system favors the hearing of both sides by an impartial jury of peers, rather than inquisitorial judges who issue verdicts.

When a lawsuit is served on a physician by an aggrieved patient, there is a time period during which the allegation must be formally answered. The answer is usually filed by the defense lawyer, denying the allegations, and where applicable, citing affirmative defenses which amount to an alternative to denial in that the defendant maintains that even if he/she indulged in allegedly culpable conduct, there were reasonable, defensible grounds for doing so. A related motion is typically filed by the defendant, asking the court to summarily dismiss the claim, for want of a credible complaint. Once these formalities are dispensed with, the next several months are invested in a process called discovery.

Discovery is an important part of pretrial litigation and is required by our legal system. It refers to both parties using certain tools and techniques to elicit information from the other party that is of relevance to the lawsuit. As a part of discovery, each party may serve upon the other written interrogatories, requests for documents, questionnaires and related devices designed to uncover relevant information. One such tool and probably the most important one related to legal discovery is taking the deposition of a witness. A request to take the deposition of the defendant physician, for example, would be served by the plaintiff’s attorney on defense counsel. The request will usually contain the proposed location, time and date of the deposition.

Deposition basics

Participation in the deposition is not optional, and depositions reflect a serious part of any litigation. Understanding what depositions are, and what they are not, is crucial to a successful outcome in the lawsuit. First, depositions are a legal proceeding, in which the physician gives oral testimony under oath. A court reporter records the words that are said by the physician in response to a series of structured questions posed by the plaintiff’s attorney. When that attorney is done with questioning, there may be more questions from the defendant’s own attorney or attorneys representing other parties in the dispute who may be present, such as lawyers for the hospital or nursing home that are also named in the lawsuit.

Depositions demand careful preparation and a thorough understanding of all facts known about the case. A literature search of the medical subject being disputed is not needed; instead, a complete knowledge of the facts of the case, and of any other depositions already taken of other witnesses is essential. If a defendant physician is unprepared for the deposition, it is best to postpone, rather than try to fumble through with answers based on guesswork and estimates.

Lawyers have special training and education in synthesizing questions that are asked during depositions. The questions are designed to make a party commit to certain positions related to the legal case. By drawing out selected admissions from a deponent, lawyers can more sharply define the contours of the dispute and capture witness testimony in written format. That writing will be used during trial to highlight the positions adopted by the witness and also to impeach conflicting testimony before a jury. There is little to be gained by delivering answers that are evasive, hostile or emotional. Skilled lawyers know that legal cases can be won or lost during depositions, and they know how to elicit answers from reluctant or evasive witnesses.

Deposition performance

There is no substitute for careful preparation, knowledge of the facts, and deliberate listening to questions and taking the time to craft artful answers that are honest, complete, responsive and no more. Deposition questions may be designed to assume certain premises, admit facts that are not in evidence or engage in hypothetical scenarios. These questions and others of such nature are best answered with a cool, composed mind that listens, understands the question, and takes the time to reflect and prepare an answer. There are no points for quick, smart and pithy answers that attempt to outmaneuver the other party. Likewise, some questions may be designed to confuse, or may be overly long and difficult to follow. There is no compulsion to answer a question that is unclear or to deliver an answer within any time frame. While the witness must answer all questions, it is important to hear and listen to the question, and reply only when understanding of the question is not in doubt.

Rapid-fire responses run the risk of saying something the physician may not mean, or inadvertently allowing the other party to enter facts or assumptions in evidence. Also, quick answers do not give defense counsel a chance to raise objections. Objections are reviewed by a judge who reads the deposition later and decides whether to allow the objection. A hasty answer cuts short the defense counsel’s opportunity to raise a valid objection, and the answer then becomes part of the record.

The greatest risk for physicians unaccustomed to depositions is the tendency to argue or to perceive the deposition as a chance to explain things in the hope that the case may go away. First, keep in mind that a deposition reduces your words to a written legal record. Speak slowly, thoughtfully and deliberately, as though dictating a formal document. The human tendency in spoken communication is to be helpful to the other party, usually by offering more details than are necessary. Resist this temptation during a deposition; one helpful exercise is to look at the court reporter transcribing the deposition while answering. Watching someone take written notes of what is being said can be a reminder to exercise prudence, discretion and caution in fashioning answers.

A deposition is not the trial, and arguments are for counsel. Arguing with opposing counsel about the strength of your position or the extent of your knowledge about the underlying medicine is an exercise in futility. A deposition is aimed at uncovering and understanding those positions that a party will take at trial and the basis for those positions. It is not the trial itself in that the facts are not being litigated. Rather, the party being deposed is committing to certain positions by their responses to questions concerning the case. The courtroom is no place for either party to spring surprises. All pertinent information must be exchanged during pre-trial discovery.

Finally, a deposition is not a chance to explain your conduct to opposing counsel or to the injured patient. In adversarial litigation such as medical malpractice, the injured patient is required to prove every element of the case to the required standard of proof. In medical negligence, this means that the patient must usually establish that a professional duty arose from a physician-patient relationship, and that such duty was breached as testified by expert witnesses and that as a result of the breach, measureable damages occurred that are amenable to financial restitution. The physician defendant has nothing to prove, however, tempting it may be to explain things from your perspective during the deposition.

Understand the dispute

The most important preparation for a deposition is gaining a full understanding of the complaint filed against you, and of the defenses that you and your counsel have contemplated. Read the original complaint that was served on you; it will list all the allegations made by the patient. The lawsuit is limited to just those complaints, and unless additional amendments have been served by the plaintiff’s lawyer, those complaints capture all the allegations and theories for criticism of your medical conduct. Understanding those complaints will help focus preparation and thought, and enable effective performance and responses during the deposition. Likewise, thoroughly understand the theories of defense, i.e., the positions that you and your counsel have planned to take, with support of expert witness testimony, which will factually refute each allegation made by the patient. Having a solid understanding and knowledge of the complaints alleged, and of the defenses that will be offered during trial, will help focus your thoughts and words during the deposition.

Conclusions

Depositions, as part of pre-trial discovery, are important in a lawsuit. The outcome of a deposition may well decide the case, even before the trial. Proper understanding and preparation are essential to effective deposition skills. Answers are reduced to a writing that becomes part of the court record; those answers cannot be modified or changed once given, other than in rare circumstances. Take deposition testimony as seriously as a court trial itself, and conduct yourself as a careful, composed professional who listens before speaking.

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• B. Sonny Bal, MD, JD, MBA, is an associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
• Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California, and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.