How to win your case before it reaches court

Often misunderstood, your deposition can set you up for either victory or defeat. Here's how to put in a winning performance.

By Robert Lowes
Senior Editor

Does anyone recall Perry Mason taking someone's deposition? Probably not. We picture him in triumphant courtroom appearances, demolishing witnesses, charming juries, skewering DA Hamilton Burger. But any lawyer will tell you that legal victory frequently hinges on the unglamorous spadework that a deposition represents.

Before a case goes to trial, both sides engage in discovery—gathering and sharing information so there are no Masonesque surprises in court. The deposition is a discovery tool that allows lawyers to quiz their opponent's clients and witnesses in person. They discover not only the other side's facts and arguments, but whether witnesses will impress juries as either champs or chumps.

If you're ever sued for malpractice or other medical misdeeds, you'd better take depositions seriously, says Jack Horsley, a defense attorney in Mattoon, IL. "Even if you have a strong case, you can weaken your defense with a poor performance," says Horsley, co-author of Testifying in Court. "What you say in a deposition may come back to haunt you."

On the other hand, effective deposition testimony improves your chances of victory. "The plaintiff's attorney may decide that the defense's case is so convincing, and his witnesses so persuasive, that he's better off settling out of court, or simply dropping the suit," says Horsley.

Some misconceptions that can ruin your deposition

Doctors sued for malpractice frequently blow their deposition because they misunderstand its purpose. Here's what a deposition isn't:

It's not a forum to defend yourself. All you're asked to do is truthfully answer questions about facts in the case. "You're not there to mount a defense or debate the plaintiff's lawyer—that's your lawyer's job," says Philadelphia attorney Bruce Maston, a former internist who now represents malpractice plaintiffs.

Doctors morph into advocates when they make self-exonerating arguments such as: "It wasn't my fault, it was the nurse's." These doctors risk asserting something inaccurate or difficult to prove.

Doctors also step over the line when they testify as if they were expert witnesses. Your attorney will no doubt hire an expert witness to affirm that you met the standard of care in the medical case at hand. You, however, are merely a "fact" witness. "It's not your place to define the standard of care," says Susan Penny, a malpractice defense attorney who now works for the California Medical Association. "If your attorney is good, he'll stop you in your tracks on that."

It's not a forum to tell your story. As a fact witness, you indeed have a story, and if your case goes before a jury, you'll have an opportunity to present it in response to friendly, systematic questions from your attorney. But don't count on this opportunity at a deposition. "Normally, the defense attorney doesn't examine his client then," says Penny.

And the plaintiff's attorney? He's only interested in eliciting testimony that helps his client. Most of his questions may pertain to only one peculiar aspect of the case. "Sometimes doctors get upset because they feel as if they didn't have a chance to tell their side, and losing your cool is never good," says Penny. "They get so frustrated that they even volunteer information." That can be a mistake—more on that later.

It's not a board exam where you prove you're a smart doctor. Doctors unconsciously confuse depositions with the exams they took to become board certified in their specialty. "Physicians feel as if they must know everything there is to know about a particular issue," says Yuma, AZ, general surgeon Constance Uribe, author of The Health Care Provider's Guide to Facing the Malpractice Deposition. As a result, says Uribe, they say more than they should when an "I don't know" might suffice.

How to prepare for D-Day

While they're horses of a different color, board exams and depositions share one thing in common—the need for preparation.

Prep work means sitting down with your attorney. If he's blasé about helping you with homework, insist on his cooperation, advises Falmouth, MA, attorney Steven Babitsky.

One thing your attorney should do is spell out the legal issues in the suit, according to Babitsky, co-author of How to Excel During Depositions. "Does the case center on malpractice per se? Informed consent? Patient abandonment? Each one comes with a set of facts to prove."

Your attorney should also ask you the tough questions that his opponent is likely to launch, adds Babitsky. Role-playing not only will help you craft answers, but expose verbal mannerisms that turn off jurors (see "Don't let these expressions taint your testimony"). However, don't memorize your deposition or trial testimony and risk sounding as though someone spoon-fed it to you. "Juries pick up on that," Babitsky warns.

You've also got some reading to do. Review all court documents filed so far in the lawsuit, including depositions by other witnesses. If nothing else, you'll learn how the plaintiff's attorney operates—does he flatter defense witnesses so they let down their guard? Study the medical records in the case and commit important entries to memory.

You'll probably feel an urge to review the medical literature on the patient's condition. This scholarship could backfire, though. The plaintiff's attorney can ask you to disclose everything you've read. One of those studies may suggest you treated the patient incorrectly. However, there may be instances where you can't afford to appear unfamiliar with the literature, says Babitsky. In any case, before you hit the books, clear it with your attorney.

Finally, get a good night's rest before Deposition Day. "It's not uncommon for a plaintiff's attorney to grill a defendant for a six-hour stretch," notes Susan Penny.

What to expect on D-Day

There's no judge or jury at a deposition. The cast of characters typically consists of you, your attorney, the plaintiff's attorney, and a court stenographer who produces a transcript.

Most depositions are held in an attorney's office. For convenience's sake, you can ask to have the deposition in your office. Home turf can boost your confidence, but it has one distinct disadvantage—the swirl of patient care outside the door may distract you.

Don't let the deposition's relaxed mood lull you into complacency. Yes, coffee is being served, and the opposing attorneys are trading jokes and snapshots of their kids. When the questions begin, however, you must be as disciplined about your answers as if you were giving them in court. After all, you're testifying under oath, and your deposition testimony can be reviewed at a trial. So refrain from sloppy answers, jokes (they may not look so funny in print), and, worst of all, derogatory comments about the patient, warns Jack Horsley.

"During one deposition," recalls Horsley, "an orthopedist said that the patient 'seemed to be a crybaby.' The plaintiff's attorney read this back to him at the trial. The orthopedist tried to explain that he simply meant the patient had a low pain threshold, but the jury eyed him suspiciously. He sounded callous."

Don't attempt to talk privately to your attorney within earshot of the stenographer. Anything she hears usually goes into the transcript. Similarly, don't try to go off the record. The court stenographer may still keep typing. Even if she stops, the plaintiff's attorney can grill you about off-the-record statements, effectively putting them back into the record, says Steven Babitsky.

Exercise the same caution with documents that you bring to the deposition. The plaintiff's attorney has the right to enter any of them—including your handwritten notes about the case—into the court record.

Sustained interrogation can be grueling. If you find yourself wearing down after two or three hours of testimony, don't pretend otherwise. Ask for a break.

The fine art of giving testimony

In one sense, the plaintiff's attorney has the upper hand during your examination. Generally speaking, you must answer every question he poses, except any that regard communication between you and your attorney.

However, as a witness, you're obliged to supply only the information that your interrogator asks for. That may sound obvious, but all too often, witnesses volunteer information that's never solicited. This is a bad move, because you may say something that directly bolsters the plaintiff's case. Or, you may be doing a favor for an ill-prepared plaintiff's attorney by educating him about basic medicine. Why do his work for him?

Steven Babitsky illustrates how witnesses reveal too much in this hypothetical exchange:

Attorney: What objective findings of malingering did you find?

Doctor: Lack of atrophy, good muscle tone, oil and grease on his fingernails. There were plenty of subjective findings as well.

Attorney: Let's get into your subjective findings.

"What the doctor volunteered about subjective findings opened up a new line of questioning," says Babitsky. "He should have stopped his answer after the first sentence."

Sometimes plaintiff's attorneys use a pregnant pause after a witness answers to coax him into saying more. Resist the temptation to fill in the silence—wait for the next question.

Witnesses occasionally volunteer information by blurting out an answer before they hear the entire question. So listen patiently, and pause before answering—you can play that game, too. Besides staking out time to think, you're giving your attorney an opportunity to object to an improperly worded or trick question (See "Watch out for deposition traps").

When your attorney raises an objection, stop talking and pay close attention to what's said. He may be telegraphing you a hint on how to answer, as in this example.

Plaintiff's attorney: Do you think that Dr. Smith had this in mind when he ordered the blood work?

Doctor's attorney: I object. That question calls for speculation.

Doctor: I don't know. I would be speculating if I answered.

Testimony invariably involves memory. Here are two rules for reconstructing the past. One, if you don't remember a particular incident, say so. "Don't substitute speculation and conjecture for a genuine memory just because you want to look like you have all the answers," advises Bruce Maston. "More often than not, you'll be proven wrong."

"On the other hand, if you indeed recall an incident, don't claim you can't remember," says Maston. "Not only are you lying, but you're at the mercy of everyone else who claims to remember what happened." Your best bet? As much as possible, stick to the facts in the medical record. If you wrote down that the patient had a dry cough, testify to that, and nothing more.

Good behavior is essential for success

The demeanor you project is almost as important as what you say. Aim for confidence, but steer clear of cockiness, which doesn't go over well with juries that may be presented with snatches of deposition testimony. Respect the plaintiff's lawyer's training and skill. The wealth of medical information makes him a formidable foe.

Likewise, don't lose your temper, even if an attorney tries to goad you into an outburst. "The only anger must come from the plaintiff's side," says Constance Uribe.

After you give your testimony, you have the right to read the transcript for accuracy and sign it. The plaintiff's attorney may ask you to waive this step, but you shouldn't. You'll want the chance to correct typographical and grammatical mistakes as well as misstatements of fact, although you'll have to explain any changes.

Then take that corrected transcript and immerse yourself in it before you go to court. You want to ensure that your trial testimony doesn't contradict what you said in the deposition.

But if you put in all the hard work that a deposition demands, you may never face a jury. Almost 70 percent of lawsuits brought against doctors are dropped or dismissed without any insurance payment awarded to the plaintiff, according to the Physician Insurers Association of America. What frequently kills off these cases is pretrial discovery. Ace your deposition, and your legal battle may be over sooner than you imagined.

Don't let these expressions taint your testimony

Your choice of words in a deposition can get you in trouble. Here are a few problematic words and phrases compiled by attorney Steven Babitsky. He's president of SEAK Inc. (www.seak.com ), a firm in Falmouth, MA, that holds workshops for doctors facing malpractice suits.

I GUESS: Guesses aren't admissible as evidence. They only hurt your credibility.

I ASSUME: It sounds like you're guessing.

UH-HUH: You'll command more respect by saying Yes instead of reverting to slang.

NEVER: When you use absolute words like never and always, as in "A never causes B," the opposing attorney often will bring up counterexamples to prove you wrong.

TO THE BEST OF MY RECOLLECTION: Leave legalese to the lawyers. Speak naturally.

Watch out for deposition traps

Go into your deposition with a healthy fear of the plaintiff's attorney. He's trying to set you up for a severe case of "gotcha!"

"The plaintiff's lawyer wants the doctor to misstate things so he can portray him as a liar in front of the jury," says attorney Bruce Maston.

Attorneys have quite a few tricks to make witnesses say things they wished they hadn't. Here's a sampling:

Compound questions. Your inquisitor may package two questions together, hoping you'll unwittingly provide a blanket answer that may not be necessarily correct for one question. Force the attorney to ask the questions separately, advises attorney Jack Horsley, who provides this example:

Attorney: The plaintiff is making a good recovery, isn't he—he still is under your care, right?

Doctor: Let's take first things first. The patient's not making a good recovery. However, he's still under my care.

Questions that assume a truth. While you are under oath, the plaintiff's attorney is not. He may ask a question with a false or questionable premise that he wants you to agree with:

Attorney: Doctor, when the patient called you about chest pain that day, you told him to go to the ED, right?

Doctor: Yes, I told him to go to the ED, but he reported abdominal pain, not chest pain.

Speed questioning. "I've watched attorneys ask a series of short, rapid questions that call for repeated Yes answers," says Horsley. "A careless witness may fall into the rhythm and answer Yes even when a No is warranted."

Pinning you down to an authoritative text. The attorney may ask if you consider a certain journal or textbook authoritative. If you answer Yes, the attorney could then cite a chapter or article that undermines your position. It's best to reply that no publication can be absolutely authoritative, given the multitude of contributing authors and opinions.

 

Robert Lowes. How to win your case before it reaches court. Medical Economics 2002;7:54.