Here’s a little secret. The highest-profile trial lawyers often do a poor job at depositions. Why? The more experienced trial lawyers spend little time preparing for depositions (of course, they will never admit this). Young lawyers spend more time preparing for depositions, but have no game plan and seem to wander aimlessly during the questioning.
The goal is simple: you want to win the case at the defendant’s deposition. Easy? Not at all. But it is possible to win your case at the defendant’s deposition.
Question: Do you see the aneurysm on this image of the CT scan of the brain?
Answer: Yes.
Question: Did you report the aneurysm in your CT report?
Answer: No.
Question: Why?
Answer: I don’t know.
Then, stop talking or move on to another topic. You’ve won your case.
Preparing for the Defendant’s Deposition is Everything
Preparation is key to a successful deposition. Meet with your expert witness and ask them to pinpoint the critical issues that you should focus on. Discuss with your expert the anticipated excuses of the witness and how to respond to the excuses.
You should explain to your expert: “I won’t have a second chance to do this. I don’t want to come back after the deposition and have you tell me that I didn’t ask the right questions. I need to know NOW what questions should be asked and how to respond to the witness’s excuses.” If the expert won’t spend time helping you to prepare for the deposition, find a new expert.
1 week before the deposition, ask the witness’s lawyer to email a complete set of medical records. You must confirm that you possess the same number of pages of medical records as the defendant. If the defendant has 305 pages of medical records in their chart, you should have the same number.
6 Rules for a Successful Deposition
Put yourself in the witness’s shoes. The witness is stressed out and anxious. You want to put the witnesses at ease and let them know you will make the deposition as easy as possible. Do not be aggressive or overbearing. Be nice and smile.
You will get many more admissions from the witness with kindness. Follow these 6 basic rules for a successful deposition.
Rule #1: Let Them Talk
Open up the witness like a can of worms. Do not interrupt when the witness is speaking and nod your head with almost everything the witness says. Build a rapport with the witness. Don’t worry if the witness bad-mouths your case. That’s okay.
When the witness is done talking, be silent and nod your head. Let the witness know that it’s okay to keep speaking. When the witness is finally done, you should encourage them to keep talking, e.g., “What else do you recall?”
Rule #2: Do Not Argue or Fight with Opposing Counsel
This will shut down witnesses and make them uncomfortable. If opposing counsel is hostile or argues, just ignore them and move on to a new topic. Do not respond or even make eye contact with opposing counsel.
Rule #3: Shut Up Once You Get an Admission
When the defense witness makes key admissions STOP TALKING. Do not ask another question on the topic and move on to a new topic or end the deposition. You will be tempted to push for more admissions, but that is a mistake. The witness will water down their previous admissions if you push for more.
Rule #4: Do Not Keep Notes
The court reporter is recording every question and answer, so why do lawyers write down everything the witness says? This makes no sense. Maintain eye contact with the witness and build rapport.
Rule #5: Direct Examination vs. Cross-Examination
Rather than cross-examining the witness, you want to ask broad questions that encourage the witness to give long-winded answers, e.g., “What do you recall about your visit with Mr. Jones?” Be nice. Let the witness exhaust their memory and then take them through each detail of their testimony.
Don’t try to get admissions (or cross-examine the witness) until you’ve exhausted their memory.
Rule #6: Build a Box and Close the Door
You must take away every excuse the witness might have.
Question: Did Mr. Jones have symptoms of a heart attack?
Answer: Some of the symptoms were consistent with a heart attack.
Question: Is a heart attack an emergency medical condition?
Answer: Yes.
Question: Did you have a heart attack on your differential diagnosis?
Answer: Yes, but it was very low on the differential diagnosis.
Question: What tests can be ordered to rule out a heart attack?
Answer: EKG, Troponin, and a stress test.
Question: Did anyone order any tests to rule out a heart attack?
Answer: No.
Question: When Mr. Jones was discharged from the hospital, were any tests performed to rule out a heart attack?
Answer: No.
Then, stop talking. You’ve boxed in the witness and they have no way to explain their admissions. The worst thing you can do is keep talking.
Once you’ve got admissions from the witness, don’t ask for an explanation. The witness will water down their testimony, e.g., “I did not order any testing for a heart attack because the patient’s symptoms were atypical for a heart attack.”
Deposition Questions for Defendant
Get to the heart of the case as quickly as possible. If you wait too long to get to the key questions, the witness may become combative, as they become tired and frustrated. This is an outline from a malpractice case involving a delay in the diagnosis of a post-operative bleed.
Qualifications
Describe your educational background with the dates that you received degrees.
When did you complete your residency?
Describe your employment history after the completion of your residency.
Where were you employed on the date that you treated the patient?
Are you board-certified in a medical specialty?
Are you licensed to practice medicine?
In what states are you licensed to practice medicine?
Do you have any privileges at hospitals?
Have your hospital privileges ever been suspended, limited or revoked?
Prior Testimony
Have you ever testified at a deposition before today?
If yes, do you testify at the deposition and who was the plaintiff?
Have you ever testified at trial?
If so, when did you testify at trial, and who was the plaintiff?
Independent Memory of the Patient
[Before you allow the doctor to review the medical records, you should fully exhaust his independent recollection of the patient.]
Do you have an independent recollection of your care and treatment of the patient?
What, if anything, do you recall?
[fully explore the doctor’s independent recollection]
How long did you see the patient?
What hours were you working in the hospital that day?
How many other patients were you caring for that day?
Is there anything else that you recall about your care and treatment of the patient?
Have you described the care and treatment of the patient in as much detail as you can?
Treatment According to the Medical Records
When did you see the patient?
Did you review the patient’s medical records before you saw him?
Did you take a history from the patient?
If yes, what history did you receive from the patient?
Was anyone other than the patient present?
If yes, what history did you receive from the patient’s family/friends?
Did you perform a physical exam?
Were there any abnormal findings on your physical exam?
Did you order any tests?
If yes, what tests did you order and why did you order them?
Differential Diagnosis
What was your differential diagnosis?
Was internal bleeding on your differential diagnosis?
Is internal bleeding a life-threatening complication?
What tests can be used to rule out internal bleeding?
Did you order a hemoglobin and hematocrit blood test to rule out internal bleeding?
If no, did you consider ordering a hemoglobin and hematocrit to assess internal bleeding?
Were there any changes in the patient’s blood pressure?
Did you rule out internal bleeding as the cause of the patient’s symptoms?
Signs and Symptoms of Internal Bleeding
What are the signs and symptoms of internal bleeding?
[symptoms of internal bleeding include lethargy, disorientation, and shortness of breath]
What symptoms of internal bleeding did the patient have?
Were you concerned about internal bleeding?
If no, why not?
Get the Witness to Blame Others
Were you aware that the patient had severe abdominal pain?
If you had been aware of this, would you have done anything differently?
What would you have done differently?
Put the Witness in a Box and Close the Door
Other than what you have already described, is there anything else that you recall about your care and treatment of the patient?
Have you described your care and treatment in as much detail as you can?
The Secret Weapon for Winning Your Deposition
During discovery, demand the audit trail from the hospital or medical practice. The audit trail is a document that provides the date, time, and identity of each person who made an entry in the electronic medical records and the substance of the changes to the medical records.
Using the audit trail, go through every entry that the witness made in the medical records and why they made changes to the records.
Question: Did you make an entry in the medical records 19 days after the patient’s death?
Answer: Yes.
Question: Was this entry contemporaneous?
Answer: No.
Question: Was there any reason to make this entry relating to the treatment of the patient?
Answer: No.
