First of all, you need to make corrections to your deposition. Though this might not seem like a big deal, it actually is. This is where you need to fix any transcription errors. But there can be another use: fine-tuning a few key answers. Of course, states differ on this point, but many states will allow you to make corrections if you, for instance, misspoke.
Get out your red pen
Let’s just say you answered something one way, and on reading the deposition you realize that you really meant to say something completely different. You got nervous and you said that INR means Internal Normalized Rate. You can fix that. You can’t change your whole testimony, but if you feel your answer as it appears in the deposition is not what you meant to say, you can fix that also. Since your deposition is the most important part of your case, you want it to be as accurate as possible.
It should be noted, however, if the attorney for plaintiff chooses, he can try to confront you with an inconsistency by reading your original answer and then the correction, to the jury. This could be embarrassing if you completely rewrote your deposition. Use this ability judiciously.
This is why, when your attorney sends you a copy of your deposition, you should not put it under a pile of stuff and forget it. You need to read every word, very carefully, and make your corrections. Again, states differ, but you can have as little as 60 days to submit your changes. Your attorney might forget to tell you how much time you have to make corrections, so remember to ask.
Besides your deposition, there will also be depositions of the Plaintiffs and relevant family members. In some states, you also depose the experts. But in other states, you won’t know what the plaintiff’s experts have to say about you until they give testimony at trial.
Once the depositions are out of the way, depending on the type of case you have, there many be an IME (Independent Medical Exam). For example, in orthopedic or neurological cases where the Plaintiff is complaining of permanent disability, you will want to verify this with an independent physician. Also, in these types of cases you probably will hire a private investigator as well, as (I know this is shocking) but plaintiffs sometimes lie about the true extent of the impairment to their daily life.
Throw it out!
The next topic I’d like to discuss is one which may open pandora’s box. That is because I am going to explain a way that you might be able to get your case dismissed. The problem is that the success rate is low. Your attorney will probably hate me for even bringing up the subject. But here goes…
A motion for summary judgment is made after all the depositions have been completed. Your attorney will make a motion to dismiss, to a judge who will decide if the case has merits to proceed to trial.
Reasons for making a motion:
1) The main reason is of course to get out of a case that you never should have been pulled into. I know, we all shouldn’t be in our cases. But still, there are some people who really should not be in a case. And those people might be let out of a case after a Motion is made.
2) If a Motion is made, even if it is lost, it requires that the plaintiff’s attorney defend the Motion. This means that the Plaintiff’s attorney has to reveal his strategy for the case, including the expert testimony they will likely use. This is a huge advantage for the defense to know this information, and the costs for the Plaintiff’s attorney are very high.
So why doesn’t everybody make a Motion for Summary Judgment all the time? Well, it is time consuming for the defense as well, and if you know that there is no chance in winning, the insurance company will be upset at a waste of their funds. More importantly, if the court deems the Motion frivolous, your attorney could be in trouble. You only want to make a Motion if you have a good chance of succeeding.
Could you win a motion to dismiss?
What kinds of situations warrant a Motion? This is a tough question. Technically, your case must have no issues of fact to decide. This is legalese and hard to grasp, so ask your attorney if you have reason to make a Motion.
As a quick example, if you saw a patient who had compartment syndrome from a cast placed the previous week, and they sued everybody involved including you, you might have a case that would be good for a motion.
The pre-trial countdown
When you get a few months before the trial date, you will want to be thinking about pre-trial preparation. This is when you get serious about your case.
First, you need to become the expert. Read everything you can on the topic. Know all the statistics off the top of your head. Know every part of the medical record backwards and forwards. And study your deposition thoroughly.
You will receive preparation from your attorney, and oftentimes, a Preparation Expert. They will assess you for your strengths and weaknesses. They will give you sample questions so you become more comfortable with the process. They will tell you what is expected of you in court (my next article).
This is why your deposition was so important. Now is the time you go through it with a fine tooth comb. You need to find anything that could be used against you, and try to “spin” it so it helps you. You need to anticipate everything that could be asked, in case it is. And you need to know the deposition so well that the plaintiff’s attorney can’t trick you by quoting something out of context from the record (they will).
Preparation is everything, and you need to be ready for battle. You are your own best or worst witness. It is your career on the line. Don’t assume your attorney will save you. You have to save yourself.
Ilene R. Brenner, MD, is an emergency physician at Piedmont Hospital in Atlanta, Georgia.