Risk Management

How to Handle a Deposition: Advice from an OMIC Defense Attorney

 By Joseph P. Metzger, Esq.

Digest, Summer, 1991; Fall, 1991 (originally in two parts)

(The following article summarizes a presentation made by OMIC defense attorney Joseph Metzger during the risk management seminar in Palm Beach Gardens, Florida, on April 12, 1991.)

Since the majority of medical malpractice cases are disposed of prior to trial, the deposition can be of critical importance to the outcome of a claim. The deposition is a pre-trial process in which parties or witnesses to a case can be examined under oath, but outside the presence of the court. Under certain circumstances, statements made during deposition can be used during the actual trial, if a case proceeds that far.

Although you may have given depositions on behalf of others on prior occasions, it is a different experience when the deposition will be used in a case in which you are the defendant. You should approach this deposition with special care, remembering that your deposition is likely to play a very important part in the determination of the ultimate outcome of your case. What follows are numerous points or rules to keep in mind throughout the deposition.

  1. Tell the truth. This is more than a copybook maxim; it is a rule of self-preservation for witnesses. Assume that examining counsel is supporting himself on his professional ability to make a witness who is playing “fast and loose” with the truth very uncomfortable.
  2. Think before you speak. Wait five full seconds before beginning to answer the question. This allows your counsel to formulate objections and gives you time to think through your answer. You should realize that when you testify you are dictating an important document.
  3. Answer the question. The examiner is entitled to an answer to the question he asks but only to that question.
  4. Do not volunteer information. You are not there to educate the examiner.
  5. Do not answer a question you do not understand.  It is up to the examiner to frame intelligible questions; if he cannot do it, do not help him. Do not explain to the examiner that the question is incomprehensible because he has misunderstood words of art in your profession. Do not help the examiner by saying, “Do you mean X or do you mean Y?” You will be asked both of these questions.
  6. Talk in full, complete sentences. Unless it is a simple question, the question generally should not be answered yes or no. Beware of questions with double negatives in them.
  7. You only know what you have seen or heard. Questions are often phrased “do you know?” A question on a deposition may legitimately call for something you do not know, but it must be asked. There is a difference between a question which asks “do you know” and a question which asks whether you have any information bearing on a particular subject.
  8. Do not guess. If you do not know or cannot recall something, say so. This rule becomes more important and more difficult to follow when the examiner is scoring points or making it appear that only an idiot does not know the answer to the question. Do not guess.
  9. Be as specific or as vague as your memory allows, but do not be put in a position contrary to your true recollection. If you are asked when something occurred and you remember that it occurred on January 15, state so. If, on the other hand, you cannot recall the exact date, state the approximate date and say that it is approximate.
  10. Do not explain your thought process in reaching your answers. In answering a question to which your answer depends on your recollection and other facts not called for by the question, do not refer to these other facts in explaining how you can answer the question. For example, if you are asked when a conversation with Jones occurred, and you recall that it had to be in December because you met Smith after Jones and that was in January, do not explain this thought process to the examiner.
  11. In testifying about conversations, make it clear whether you are paraphrasing or quoting directly.
  12. In answering questions calling for a complicated series of events or extensive conversations, summarize these where possible. The examiner, if he is doing his job properly, will ask for all the details. It is always possible, however, that the examiner will accept your summary and this is so much the better.
  13. Never characterize your own testimony. Phrases such as “in all candor,” “honestly,” “I’m doing the best I can” should never be used.
  14. Avoid all adjectives and superlatives. “I never” or “I always” have a way of coming back to haunt you. (There are times, however, when such words are appropriate.)
  15. Do not testify as to what other people know unless you are asked specifically for such a statement.
  16. Do not testify as to your state of mind unless you are specifically asked.
  17. Do not tip off the examiner about the existence of documents he does not know about. If information is contained in a document which is not an exhibit at the deposition, answer the question only if you can recall the answer without looking at the document. Otherwise, simply answer the question by stating that you do not recall. If you can answer the question, do so. After a witness states that he does not recall a fact which the examiner believes he should have knowledge of, the examiner will usually ask if there is a document which can refresh his recollection.
  18. Do not let the examiner put words in your mouth. Do not accept his characterization of time, distances, personalities, events, etc. Rephrase the question into a sentence of your own, using your own words.
  19. Do not answer a compound question unless you are certain that you have all parts of it in your mind. If it is too complex to be held in your mind, it is too complex to answer.
  20. Pay particular attention to the introductory clauses preceding the guts of the question. Leading questions are often preceded by statements which are either half true or contain facts which you do not know to be true. Do not let the examiner put you in the position of adopting these half-truths or unknown facts on which he will then base further questions.
  21. If you are interrupted, let the lawyer finish his interruption and then firmly, but courteously, state that you were interrupted and had not finished answering the question. Then do so.
  22. If you are caught in an inconsistency, do not collapse. What happens next depends on what questions are asked of you. State, if asked, your present recollection. State the reason for the inconsistency only if asked. Rehabilitation is done at trial or, if appropriate, later in the deposition when your attorney asks you questions.
  23. Do not adopt an examiner’s summary of your prior testimony.
  24. Do not add to your answer because the examiner looks at you expectantly. If you are finished with an answer and the answer is complete and truthful, remain quiet and do not expand upon it. If the examiner asks you if that is all you recollect, say “yes” if that is the case.
  25. Do not agree to supply any information or documents requested by the examiner. If reference is made to documents or information, the request is made to counsel. Counsel will either answer the request or will take the request under advisement.
  26. If an objection is made to a question, listen to the objection very carefully. You may learn something about the question and how it should be handled from the objection.
  27. Never express anger or argue with the examiner.
  28. Do not expect to testify without the other side scoring points. If the other side appears to you to be asking questions which call for answers that do not help your case, accept the fact that every lawsuit has two sides and sit back and take your punishment. Avoid the temptation to guess, expand upon your answer where expansion is not called for or, even worse, prevaricate.
  29. Avoid any attempt at levity. Pomposity is the occupational disease of the legal profession; you will probably be hauled over the coals for not taking your solemn oath seriously if you make jokes or wisecracks.
  30. Avoid even the mildest obscenity and absolutely avoid any ethnic slurs or references which could be considered derogatory.
  31. There is no such thing as “off the record.”  If you have a conversation with anybody in the deposition room, be prepared for questions on that conversation.
  32. If the examiner appears totally confused about your profession and its technical aspects, do not attempt to educate him.
  33. If you do not remember something, so state. You may then be asked if a statement or document refreshes your recollection. If it does, so state. If it does not, the answer remains that you do not remember. You may be asked whether there exists a document which may help you refresh your recollection.
  34. Numerous documents are marked as exhibits at certain depositions. If you are asked about a document, read it before testifying. Do not make any comments whatsoever about the document except in answer to the question that elicits your testimony.
  35. If you are hit with a flash of insight or recollection while testifying which has not been previously discussed with counsel, hold this to yourself until you have an opportunity to go over it with counsel.
  36. Use all recesses to follow your attorney to a place where you can confer in private.
  37. Every witness makes mistakes on a deposition. Do not become upset if you find you have made one. If you make a mistake during the deposition, correct it as soon as you realize it. Mistakes you remember after the deposition is over may be corrected at the time you are to sign the transcript.


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