CASE Direct question at deposition
During your deposition in a malpractice suit, plaintiff’s counsel asks you: “Are you saying it was impossible to foresee Ms. Jones’s preterm premature rupture of membranes?”
How would you reply?
Ninety percent of malpractice cases are settled before trial, and the deposition often is the turning point in those cases.1-3 Your answer to tricky questions such as the one in the case fragment above could favorably affect a critical stage of litigation—or it might spur the plaintiff’s attorney to pursue the case more vigorously. Even if a case is settled in the plaintiff’s favor before trial, the effectiveness of the deposition may determine whether the settlement is $300,000 or $1 million.
Our central message in this article is: Don’t go to a deposition unprepared. We offer guidelines to help you anticipate many different scenarios, and we include examples of honest, skillful answers to difficult questions (see “Honest, skillful answers to 8 tricky questions at deposition”).3-7
Digging for pay dirt
Discovery begins after a formal complaint alleges malpractice. The parties to a lawsuit gather information through written interrogatories, requests for documents, and witness depositions—out-of-court testimony to be used later in court or for discovery purposes.8 The rationale for discovery is to reduce surprises at trial and encourage pretrial settlement. The witness being deposed is the deponent, and testimony is given under oath.9
A discovery deposition is designed to gather information, with almost all questions asked by opposing counsel. If you are sued for malpractice, this is the type of deposition you probably will encounter.
Rules of engagement. The plaintiff’s attorney initiates the discovery deposition. Ground rules vary by jurisdiction, but, in general, the Rules of Civil Procedure give deposing counsel substantial latitude in the questions that can be asked.10 The deponent and defending counsel, opposing counsel, and transcriptionist typically attend the deposition. To help you prepare appropriately, confirm with your defense counsel if other attorneys or the plaintiff will be present.
Not-so-hidden agendas. The plaintiff’s attorney’s primary goal is to gather as much information as possible about your side’s case4 (TABLE 1). No matter how accurate medical records may be, they require interpretation and follow-up questioning of key players to get the full story. Opposing counsel also wants to:
- “lock down” your testimony for use at trial (testimony captured at a deposition can be used to impeach a witness who gives inconsistent testimony at trial)9
- “size up” your potential impact on a jury by assessing your strengths and weaknesses as a witness.11
The impression you make may influence the opposing attorney’s decision about how far to pursue the case. Plaintiff’s attorney Bruce Fagel once told an interviewer that defense attorneys, too, may consider settling a case “if their client shows such arrogance in our deposition that they’re afraid to let him appear in front of a jury.”12
Plaintiff’s attorney has 5 goals at deposition
|Lock down testimony for trial|
|Scrutinize the defendant’s qualifications|
|Size up the defendant’s effectiveness as a witness|
|Probe the defendant for bias, arrogance, or hostility|
|Learn as much as possible—known as “fishing”|
Choosing a site. Most depositions take place in a conference room in the law office of one of the attorneys or at a neutral site. Avoid any temptation to schedule the deposition in your office, even though meeting there might seem more expedient and comfortable for you.9 Scheduling the deposition at your site:
- might make you feel it is “just another day at the office” and dissuade you from preparing sufficiently or taking the deposition seriously
- allows opposing counsel to scrutinize diplomas, books, journals, and other materials in your office.
Questioning you about these materials during the deposition is not off-limits for the plaintiff’s attorney. You might find it difficult to explain why a book on your bookshelf is not “authoritative.”
Prepare, prepare, and…prepare some more
Review the case. At least twice, carefully review the entire database—including medical records and other depositions. Perform one of these reviews just before the deposition.3 Having the details fresh in mind will help you if opposing counsel mischaracterizes information when questioning you.