Last summer, just after I had begun writing a series of articles for EPM about how to survive a malpractice suit, it happened. I was sued; irony of ironies. My attorney was a little concerned about the fact that I now had a whole hoard of articles floating out there on the ether of the internet. Against his sage advice, I allowed them to stay online as a resource for other physicians. It must have been good karma (or a really bad case on their part) because less than one week after I gave my deposition they dropped the case. (You see a good deposition can make a world of difference!) I learned a few things as a result of my last deposition that I would like to share.
I said in my earlier article that the deposition “is not there to clear up the facts so that the plaintiff’s attorney can realize just how very wrong they were for suing you.”
OK, in my case the deposition did clear up the facts and the plaintiff did realize they were in error in filing the lawsuit. Most of the time this does not happen because a competent Plaintiff’s trial attorney will do enough research prior to filing the case to know if this is worth it to continue. So how should you know what to say and what to explain?
Once again, less is more. There might be a circumstance where your attorney could tell you on a “bathroom break” that for one specific issue you should explain things more in depth. Leave that for your attorney to tell you. They told me to elaborate on a certain issue to make the Plaintiff’s attorney understand something. I followed his advice, and clearly that made a difference. In essence, my advice is still the same. Only answer what you are asked, as briefly as possible. However, use your attorney as a guide to know if there are certain issues you should explain more fully.
At the deposition, take breaks! Bathroom breaks. Soda breaks. Lunch breaks. This gives you an opportunity to converse with your attorney and adjust your tactics as necessary. And it helps you recharge a little bit. Being at a table full of people while someone asks you a barrage of questions can be very tiring.
When the deposition is over, leave the building quickly! Don’t hang around to talk with your attorney. If the plaintiff’s attorney thinks of another question he might call you back into the room. He can’t do that if you are not there.
More and more, attorneys are supplementing their own preparation with preparation experts who get you ready for your deposition and trial. If you are given the opportunity, use one. If not offered, ask if this is possible.
Few attorneys spend the time and effort to make sure you are completely ready for trial. They don't go the extra mile to ensure a stellar performance on the stand. Why don't they? I don't know; it is certainly to their advantage to make sure you are an excellent witness.
Even if you feel you received good preparation by your attorney, a preparation expert can give you the extra confidence you need to do a great job at the deposition and trial. I have found that even if only one or two things they tell you help you, it is worth it.
In conclusion, the deposition can make or break you case. And if you have a good case to begin with, you may even get lucky and get your case dropped or dismissed. If not, you will at least set yourself up well for your trial.
Ilene R. Brenner, MD, is an emergency physician at Piedmont Hospital in Atlanta, Georgia