WHAT
EVERY PHYSICIAN SHOULD KNOW ABOUT GIVING A DEPOSITION
(CONTINUED)
Brock D. Phillips
SUGGESTIONS FOR DEALING WITH
OPPOSING COUNSEL
Number 1: Remember The Name Of The
Game
As the defendant, physicians can
rest assured that plaintiff's attorney's purpose in taking the deposition will be to
enhance the plaintiff's case. The atmosphere in the deposition room may be casual and even
friendly. Plaintiff's attorney may be charming and personable. Nonetheless, the attorney's
purpose is to obtain testimony that will help the plaintiff's case and hurt the defense.
Physicians must be alert to this fact throughout the deposition.
Number 2: Never Volunteer
The most important thing a physician
can learn before the deposition is to never volunteer information. A "helpful"
witness does more damage to a lawsuit than any other source. This point cannot be
over-emphasized.
This is an extremely hard rule for
any witness to learn. Most of us want to be helpful. Physicians spend much of their day
explaining symptoms to their patients. It is unnatural, and can feel awkward, to hold back
information and state only what is necessary in order to be truthful.
If the question can be answered with
a simple "Yes" or "No", do not volunteer a further answer unless the
simple "Yes" or "No" leaves the testimony in an unfavorable light. If
the interrogator asks for an example, the physician should not volunteer a second or a
third example. If the opposing attorney does not understand the subject well enough to
phrase the questions properly, the physician is not required to take it upon him or
herself to explain the subject matter sufficiently to permit counsel to ask intelligent
questions.
Physicians should not volunteer
information of any kind. If asked if the physician has a certain file, the physician need
not answer with the words "No, Dr. Smith in my office has that file." A simple
"no" would have been sufficient. Volunteering a reference to Dr. Smith
guarantees that Dr. Smith's deposition will also be taken.
It is by no means suggested that
physicians should hide any information. Physicians do not want to provide misleading
information that is technically truthful but would appear evasive if the answer were read
at trial. Physicians should not attempt to "outthink" the opposing counsel as if
this deposition were some sort of game. If the question calls for fact X, then the
physician should state fact X. However, the physician should not volunteer facts Y and Z
as a part of the answer. Let the attorney ask questions; that is their job.
Number 3: Make Sure The Physician
Understands the Question
The physician should never answer a
question unless he or she fully understands it. First, make sure the physician has heard
the entire question. Some attorneys have a habit of dropping their voices toward the end
of a sentence. Sometimes noises outside of the deposition room interfere with the
deponent’s ability to hear the question. If this happens, request that the full
question be repeated.
If the question is long and
complicated, the physician may ask the attorney or court reporter to repeat it. A question
may not make sense. Attorneys have been known to ask a great number of unintelligible
questions, especially in the area of medicine. If the physician does not understand the
question, he or she should immediately say so. The attorney should then rephrase the
question. If counsel restates the question and it is still unclear, the physician may
again state that he or she does not understand the question. Indeed, the physician should
continue this process until counsel has stated the question in such terms as to make it
clear.
Physicians have a right to ask for
clarification of a question at any time. Indeed, physicians should ask for
clarification of some questions. If, for instance, a witness attended three meetings and
is asked, "What did you say at the meeting?", the witness may respond with,
"Which meeting do you mean?"
Occasionally a question may not make
sense because the attorney does not understand the technical details of the subject.
Physicians should not guess at the meaning of the question. Physicians should tell counsel
he or she does not understand the question.
This is not to imply that physicians
should be overly technical or picky about the question. If the question is understandable,
then answer it. However if the question is ambiguous, confusing or unintelligible, then
the physician should insist that the question be restated in terms he or she can
understand.
Number 4: Take Time to Think.
The physician should follow the
following recommendations:
First, listen to the whole
question. Never answer before the attorney finishes the question; the last word of the
question may change its whole meaning.
Second, consider the question
carefully.
Third, think through the
answer. Take as much time as needed to phrase the answer. Finally, state the answer
concisely.
Never rush this process. Set a pace
where the physician is comfortable and hold to that pace. It should be a pace which gives
the physician time to think.
Everyone has a tendency to answer
questions before the person asking the question is finished with the question. The
physician must wait until the attorney is finished asking the question before you answer
it. This will allow the physician to think about the entire question and avoid
misunderstandings about what the entire question was really all about. In addition, the
court reporter cannot transcribe the words of two persons talking at the same time.
Number 5: Never Guess.
If the physician does not know the
answer to a question, he or she should say so. "I don't know" is a full and
complete answer. Certainly, if the physician knows the answer to the question, he or she
must answer it. But if the physician does not know the answer, then it is a sign of wisdom
to admit simply that he or she does not know.
The physician may be called upon to
give reasonable estimates concerning information within his or her knowledge. For
instance, a physician may think a conversation took approximately 30 minutes, but not be
sure of the exact length of time. If so, it is proper to answer that the conversation
lasted 30 minutes, with the qualification that the answer is an estimate. However, if the
physician does not know how long the conversation lasted, then the physician may state
that he or she has no estimate or that he or she simply does not know. Opposing counsel is
not entitled to require a witness to guess and the physician should decline to guess.
Occasionally, attorneys will say "I don't want you to guess; I just want your best
judgment." If the physician’s best judgment is still a guess, then the physician
should state that he or she has no judgment beyond a guess. The physician should not be
intimidated into thinking that he or she should know the answer to a question or that he
or she might appear foolish for not knowing.
In order to answer a question,
physicians have the right to refresh their recollection by reviewing the medical records.
If the particular record is not available at the deposition, physicians have the right to
refuse to answer the question or make the answer conditional upon reviewing the record.
Number 6: Remember Sometimes You
Can't Remember.
There will be times when physicians
can't remember important facts. This happens to everyone. Many persons are unable to
recall the dates of their children's birthdays or addresses of their childhood residences.
If this happens, the physician should not be afraid to say: "I can't remember."
There is no rule which says a
physician has to remember if they don't. It is better to not guess at an answer than to
provide an erroneous and potentially damaging response. On the other hand, if a physician
remembers, the physician is obliged to testify. Keep in mind that a physician who pretends
not to remember important facts in deposition may be discredited if the physician later
tries to convince a jury that he or she can remember the facts at trial.
Number 7: Speak Clearly.
The physician should remember that
the court reporter must write the answer. Therefore, physicians should avoid non-verbal
answers. In other words, the physician should say "Yes" or "No"
instead of nodding or shaking the head. If a physician points to an object or a place or
if the physician holds up his or her hands to indicate a distance, most experienced trial
attorneys will follow with a statement somewhat like: "Let the record reflect that
the witness is indicating approximately three feet."
The physician should also remember
to answer with a clear yes or no. He or she should avoid "uh-huh",
"yeah" and other similar substitutes. These substitutes can be misunderstood by
the court reporter with the result that the answer might be recorded as just the opposite
of what the physician intended.
Number 8: Always Finish Your Answer.
Counsel may sometimes cut a witness
off in the middle of the witness's answer by quickly interjecting another question
designed to lead the witness off in another direction. The physician’s attorney
should object to this. But the physician should always complete his or her answer. If
opposing counsel attempts to interrupt, the physician may wait until counsel has finished
and then say: "I am sorry, you interrupted my last answer before I had finished. Let
me finish that answer, and then I will come to your next question. As I was saying before
the interruption..." Occasionally an attorney will attempt to block a continuation of
the answer by suggesting that the physician move on to a new subject. Physicians may
refuse to answer another question until they are given an opportunity to complete their
answer to the partially unanswered question. Of course, the physician’s attorney
should require the opposing attorney to permit the physician to complete the answer.
Number 9: Correct Your Answer.
A physician may discover during the
deposition that he or she has given an incorrect or inaccurate answer. Physicians have a
right to correct a prior answer at any time. It is far better to correct the answer before
the deposition is over, than to have to explain an incorrect answer from the witness stand
in the courtroom perhaps months or years later.
Number 10: Listen to the Objections.
A physician’s attorney may
occasionally object to questions asked by opposing counsel. If the attorney objects, the
physician should stop and wait for his or her attorney to finish. The court reporter will
note the objection for later ruling by the court. Occasionally the physician’s
attorney may instruct the physician not to answer a question. If the physician’s
attorney does not so instruct, the physician may proceed to answer the question.
If the physician’s attorney
objects to a question, the physician should listen very carefully to the objection,
because it may point out that the opposing counsel is asking an unfair or misleading
question. For instance, the physician’s attorney may object on the grounds that the
question is vague, ambiguous, confusing or misleading. If such an objection is made, the
physician should be careful to make sure that he or she fully understand the question or
have properly clarified it before answering.
Frequently, an objection is made on
the grounds that the question asks the witness to resort to speculation, conjecture and
guesswork. As stated above, physicians should never guess.
Number 11: Feel Free to Take a Break
If the physician needs to take a
break for any reason, he or she should not hesitate to suggest one. If the physician
becomes tired and feels that his or her testimony may be affected, the physician’s
attorney should be notified. If the physician feels ill, he or she may insist upon a
recess of the deposition. If the deposition has extended beyond the time anticipated and
is interfering with an important matter, the physician should bring this to his or her
attorney’s attention.
If the physician needs to speak to
his or her attorney because he or she is uncomfortable with a question or with your
upcoming answer, the physician should not hesitate to ask for a recess. It is worth the
trouble of taking a break to discuss concerns in private than to risk giving testimony
about issues not have addressed earlier.
Hopefully, this information will
enable physicians feel more familiar with, and thus comfortable about, the deposition
procedure and their participation. Attorneys representing physicians should address any
questions physicians have about depositions when they meet to prepare the physician for
deposition.
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