When the deposition of a healthcare professional is depicted on television or in the movies, it is invariably a dramatic affair. Klieg lights flash across sweaty brows. High definition cameras pan back and forth, revealing every grimace and grin of examiner and examined alike. A rhythmic bass line mimics the human heartbeat, growing tachycardic as the key piece of testimony is elicited. The winner revels in victory. The loser resigns in defeat.

In the real world, you are more likely stuck in a conference room with your attorney, a court reporter displaying a thousand-yard stare, and an opposing counsel who appears to spend too much time asking poorly phrased questions about irrelevant things. Hollywood, it isn’t. Nevertheless, the deposition of a healthcare professional can have a significant, sometimes dispositive, impact.  Each case is unique and will require coordination with your attorney specific to its particular facts and issues. However, the following general tenets may provide a solid foundation upon which to build.

1. Failing to Prepare is Preparing for Failure.  The questioning will likely involve healthcare related matters with which you are familiar. You may also be knowledgeable about, or have provided, some of the specific care at issue. While this should get you off to a good start, do not be tempted to wing it. Your preparation and attention to detail will be critical. Meet with your attorney to prepare for the deposition – several times, if necessary. Engage in some mock-questioning to get a feel for how the deposition will proceed and to hone your responses. Generally, it is advisable to review any medical records which are likely to be utilized during the deposition, if not the entire medical chart. This is especially true for records concerning treatment which you and/or your practice rendered.

2. Anticipate Areas of Examination.  You can safely presume that some topics will be covered during your deposition. For example, you will likely be asked about your education, practice, affiliations, experience, licensure, board certifications, publications, research, claims or lawsuits, service on medical review panels, and involvement with the patient and/or care at issue. This last topic is generally the most central. After preparing, you should be able to testify competently as to any care you provided and, usually, its context within the patient’s broader course of treatment. Consider the bases for any healthcare decisions you made or procedures you performed. Identify the reasons why alternative options were not recommended or pursued. Confirm what information and materials were available to you at the relevant time periods.

3. Take a Moment to Consider Questions before Responding.  This allows time for you to fully consider the question, develop your response, or ask for clarification. It will also allow your attorney an opportunity to make objections, if appropriate. Pauses are not generally indicated in deposition transcripts. So, unless the deposition is being videotaped, the brief delays will not be noticed. Even if the deposition is being videotaped, the delays should help portray you as a careful and cautious deponent.  If there is a lull in the questioning, do not feel the need to fill the silence. Simply await the next question.

4.  Consider Your Audience.  You are not simply testifying as a person. You are also testifying as a healthcare provider.  The audience for your testimony (i.e., the judge and/or jury) should be predisposed to find you credible and competent because they probably view their own healthcare providers that way. You may be able to reinforce this predisposition. Discuss with your attorney whether you should wear your workplace attire to the deposition, particularly if you will be coming from or going to work that day. Utilize your bedside manner, when appropriate, during the deposition.  Monitor your tone and demeanor to maintain an air of confidence and professionalism without appearing condescending.

5. Be Truthful and Responsive.  Your only obligation is to truthfully answer the questions which are asked, if you are able to answer them.  However, you do not have an obligation to know everything.  Responding to a question by stating that you “do not know” or “cannot recall” is perfectly fine if true.  However, be aware that overly relying on such responses when they are not appropriate can make a witness appear less than candid and forthright.

6. Do not Expect an Extensive Number of Objections. The range of objections which are necessary and/or helpful during most depositions is smaller than typically assumed. In fact, asserting unfounded objections may let the examining attorney know he/she has found a pressure point or an issue of some concern. If that happens, he/she is likely to focus on that line of questioning more intently and for a longer period of time.

7. It is Fine to Speak with Your Attorney.  If you are asked whether you discussed the case or your testimony with your attorney, it is fine to say “yes.” That shows you took the process seriously and prepared for it. However, the contents of your discussions with your attorney are generally privileged. Do not reveal them unless expressly instructed by your attorney. More likely, your attorney will object to any such question and instruct you not to respond.  Similarly, it is perfectly fine to request a break during the deposition so that you may speak with your attorney. You do not need to inform the examiner that is the reason for the break. Instead, simply ask to take a break and then consult with your attorney in private. Typically, it is best to request breaks in between questions. That way, it does not appear like the attorney is coaching the witness. However, if you need to discuss something with your attorney at that moment, then request a break and stop testifying until it is granted or your attorney responds with alternative instructions.


© Riley Bennett Egloff LLP

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