Many plaintiff’s lawyers view the defendant’s deposition as simply an opportunity to gather information about the defendant’s position. These lawyers ask a sundry of common questions at the defendant’s deposition, such as “who, what, when and how” and as one might expect, the defendant is well prepared to respond with benign responses that cast themselves in the best possible light (and completely innocent of wrongdoing).
The goal of the deposition is not simply to get information from the defendant. Gathering information is 5% of your goal for the deposition. The real goal is to win your case at the defendant’s case. What does this mean? By the end of the deposition, the defendant will have absolutely no alibi or excuse. You’ve closed all doors and there is no escape. Case closed.
6 Rules for Preparing for the Defendant’s Deposition
Rule #1: Meet with Your Expert
As a young, inexperienced lawyer, I would make the mistake of conducting the deposition of a defendant physician without speaking with my expert. Almost invariably, my expert would call me after reading the deposition transcript and say, “I can’t believe you didn’t ask this question!”
But it was too late, there was nothing that could be done. I missed the opportunity to ask critically important questions at the defendant’s deposition. I promised—as a young lawyer—this would never happen again.
Before the deposition of the defendant, ask your expert witness to set aside a morning or afternoon to spend with you discussing the line of questions that should be asked at the defendant’s deposition. This is how I explain the purpose of this meeting:
To prepare for the defendant’s deposition, I would like to spend 2-3 hours with you discussing the questions that should be asked during the defendant’s depositions.
I do not want to leave any stone unturned at our meeting. Please set aside a block of uninterrupted time for our meeting.
There is nothing more important that you can do to prepare for the defendant’s deposition than meeting with your expert. If you are not meeting with your expert before the defendant’s deposition, you should not be practicing malpractice law.
Rule #2: Pinpoint the Essential Elements of the Case
Ask your expert to pinpoint the essential elements of the case and ask them how they would ask questions. Discuss the defendant’s anticipated excuses and how you will respond to them. Try to find the weaknesses in your case.
What are the essential points that you need to win your case? In a case involving a failure to diagnose a heart attack, the essential elements of proof might be:
- The patient had the signs and symptoms of an acute myocardial infarction (heart attack);
- An acute myocardial infarction should have been on the doctor’s differential diagnosis;
- Diagnostic testing should have been performed to rule out an acute myocardial infarction;
- Earlier diagnosis would have increased the patient’s likelihood of survival.
Point by point, you want the defendant to concede the critical elements of your case. Specifically, you want the defendant to admit that the patient presented with the classic signs and symptoms of a heart attack, no diagnostic testing was performed and as a result, the patient’s likelihood of survival was significantly diminished.
Rule #3: Insist Upon the Production of the Original Medical Records
Before the deposition, you must conduct an original chart review to compare the medical records that you possess to the original records. You are almost certain to be surprised that you are missing critical parts of the medical records. If the defendant’s attorney objects, raise this issue with the Judge. You are entitled to conduct an original chart review, pursuant to section 18 of New York’s Public Health Law and 45 C.F.R. section 164.524.
Do not conduct the defendant’s deposition unless the defendant’s attorney brings the original medical records to the deposition. One week before the defendant’s deposition, your secretary should confirm that the defendant’s attorney will bring the original medical chart at their deposition.
At the deposition, ask the court reporter to mark the original medical chart as an exhibit and use the exhibit whenever the defendant refers to the records.
Rule #4: Bring Your Expert Witness to the Deposition (when necessary)
In New York, you have the right to bring your expert witness to the defendant’s deposition. This will only help you. When the defendant uses jargon that is unfamiliar to you, your expert will decipher the meaning of the words and tell you how to respond.
During a recent deposition, our expert witness (a hospital security expert) attended the deposition of the defendant hospital’s Director of Security. The expert was able to see through the witness’s lies and prompt me with questions. The expert witness attended the deposition via Zoom video conference, so there was no extra expense. Super easy and extremely helpful.
Rule #5: ALWAYS Videotape the Defendant’s Deposition
If the deposition is not worth videotaping, it’s not worth taking the deposition. Seriously. Failing to videotape the defendant’s deposition is the biggest mistake made by plaintiff’s lawyers.
Videotaping the deposition will capture the defendant’s non-verbal communication, e.g., pauses, facial expressions, body position, hands covering their mouth, etc. Non-verbal communication is often more powerful than what the defendant says. Never conduct a deposition without video.
Want to save the expense of a videographer? No problem, my friend. Serve a notice that you will be videotaping the deposition and bring a video camera to the deposition. You don’t need a videographer. Section 202.15 of New York’s Uniform Rules of Trial Courts require a few standard statements at the beginning and end of the deposition, and voila! You’ve videotaped your first deposition.
Rule #6: Use a Document Camera to Display Records
A document camera is a great way to simultaneously show a document or photograph and the witness. Using the document camera, you can enlarge key parts of the medical records while simultaneously the defendant remains on camera in a picture-in-picture. This allows the jurors to see (via the video recording) the actual documents that contain crucial admissions.
7 Tips for Conducting the Defendant’s Deposition
How do you win your case at the defendant’s deposition? BE NICE. Do not be aggressive and argumentation, as this will shut down the defendant’s willingness to speak freely.
Tip #1: Let the Defendant Talk…As Much As They Want
You want the defendant to tell their side of the story at the deposition. Encourage the defendant to talk. Nod slowly to show agreement with the defendant’s responses. The defendant will feel willing to speak more and you will open the door for more admissions.
- Is there anything else you remember?
- What else can you share with us?
Do not interrupt the defendant when they are speaking. After the defendant is finished speaking, PAUSE. Don’t say a word, and the defendant will fill the silence by speaking more. When there is silence, the defendant will almost feel compelled to continue speaking. This is exactly what you want.
Tip #2: Prove Your Case Through the Defendant’s Admissions
How do you prove your case? You get crucial admissions from the defendant. First, what are the critical points that you need to prove to win your case? Keep the points simply and easy to understand.
In a case alleging a failure to diagnose an impending brain bleed (subarachnoid hemorrhage), the critical points would be:
- Would you agree that the sudden onset of a severe headache is a symptom of a subarachnoid hemorrhage?
- Would you agree that a subarachnoid hemorrhage is an emergency medical condition that requires emergency surgery?
- Would you agree that, if untreated, a subarachnoid hemorrhage can cause brain damage?
Let’s say the defendant won’t admit any of the elements that you need to prove. The defendant will appear silly for denying that a patient presenting with the symptoms of a heart attack requires diagnostic tests. Regardless of the defendant’s answer, you win.
Tip #3: Get the Defendants to Blame Each Other
Ideally, you want the defendants to blame each other for the bad outcome. How do you do this? Construct hypothetical questions based upon information that you can prove.
- If you had known that the CT scan of the brain showed a brain herniation, would that have altered your plan of treatment?
- If you had known this information, what would you have done differently?
Once the defendant concedes that they would have acted differently if provided with the information, they are essentially blaming a co-defendant for failing to communicate information to them. When a defendant blames a co-defendant, you’ve won your case.
Tip #4: Get Admissions Using Hypothetical Questions
Use hypothetical questions to get admissions from the defendant. Build admission after admission.
- When a patient presents to the emergency department with severe substernal chest pain, the physician’s differential diagnosis should include an acute myocardial infarction, correct?
The defendant won’t always give you the admissions you want, but when they deny the obvious, they look bad. And this is often better than an admission.
Tip #5: Put the Defendant in a Box…And Throw Away the Keys
Don’t give the defendant with an opportunity to change their testimony at trial. Make sure you’ve exhausted the defendant’s recollection.
Finish the deposition with these questions to box defendant into a position:
- Have you described your care and treatment of Ms. Jones in as much detail as you can?
- Is there anything else that you call about your treatment of Ms. Jones?
Once the defendant admits that you’ve exhausted their recollection, and they have nothing else to add, you’ve boxed them in and they can’t change their testimony during trial.
Tip #6: Don’t Be Greedy
When a defendant makes a key admission, e.g., the patient had the classic symptoms of a heart attack, move onto another topic or end the deposition. NEVER give the defendant an opportunity to explain away a damaging admission.
Question: Did the patient have any symptoms of a heart attack?
Answer: Yes, she had chest heaviness and severe chest pain, those are symptoms of unstable angina.
[IMMEDIATELY MOVE TO ANOTHER TOPIC]
Question: When was the next occasion you saw the patient?
If the defendant admits that the patient had the classic symptoms of a heart attack, don’t ask them to explain. MOVE TO A DIFFERENT TOPIC IMMEDIATELY OR END THE DEPOSITION. You’ve got the admission you want, but if you ask more questions, the defendant will water down their admission to make it appear less damaging.
Tip #7: Never Argue with Defense Counsel…But Make a Record
Be friendly with the defendant and opposing counsel. If you argue and fight with opposing counsel, the witness will feel intimidated and less likely to volunteer information and for all practical purposes, the deposition will be over.
If the defendant’s attorney gives an instruction not to answer a question, do not argue, simply respond in a calm voice as follows:
Section 221.2 of New York’s Uniform Rules for the Conduct of Depositions requires that witnesses answer all questions at a deposition, unless the question seeks information that is privileged or confidential, subject to a limitation in a court order, or “plainly improper” and would cause “significant prejudice” to the deponent.
- There has been no claim of privilege or confidentiality by defendant’s attorney;
- There has been no claim that the question is subject to a limitation set forth in a court order;
- There has been no claim that the question is “plainly improper” and if answered, would cause significant prejudice to any person.
Based upon section 221.2 of the New York Rules for Conduct of Depositions, the question must be answered by the defendant.
If the defendant is not permitted to answer the question, I will make a motion at trial, pursuant to CPLR section 3126, to preclude the defendant from testifying on the subject that has been posed in the question as well as any other subjects that might arise from a response to the question.
If the defendant’s attorney still refuses to permit a response, you’ve laid the groundwork for a motion to preclude testimony at the time of trial.
At the end of the defendant’s deposition, you should state:
Plaintiff reserves the right to a further deposition of the defendant based upon their counsel’s refusal to permit responses to certain questions.
With this, you’ve done everything to protect the record.
Winning Your Case at the Defendant’s Deposition
Mastering the art of depositions is more important than any other skill for a trial lawyer. Why? When you pick the best cases and handle the depositions with skill, the majority of your cases will settle before trial. Crush the defendant at their deposition and a trial won’t be necessary.
