Khoury, Martin L. "Depositions: America’s
Favorite Question and Answer Game," Vital
Signs. February 19, 2002
Depositions: America’s
Favorite Question and Answer Game
February 19, 2002
Soon after a Complaint is filed the
process of Discovery begins. "Discovery"
means exactly that; each side has the opportunity
to discover the facts of the case. For example,
each side will propound Interrogatories, which are
questions intended to explore the opposing party’s
bases for the suit or its defense. Each side also
propounds Requests for Production, asking for documentation
to establish certain facts that will be used later
in litigating the case.
Parties may also take the depositions
of the Plaintiff, the Defendant, fact and expert
witnesses. A deposition is a relatively simple process,
but there is probably no other tool as effective
for uncovering facts. Asking questions in a deposition
can open doors to other events and circumstances
that would otherwise remain undiscovered. The deposing
attorney can ask follow-up questions and the opposing
counsel can cross-examine the witness. This is all
done under oath just as if the witness was sitting
in a courtroom.
What should you do when you receive
a summons for a deposition? First, remember there
are always at least two lawyers involved. One of
them is probably defending your employer and, by
association, your actions. Look at the subpoena
carefully as it will contain the date, time and
location of your deposition, a list of documents
you may be expected to bring with you and it will
also contain the names of both lawyers. Do not call
the attorney who sent you the deposition. Call the
other attorney and find out whom, if anyone, is
representing your interests or that of your employer.
Most good lawyers like to conduct pre-deposition
conferences with witnesses at least a few days before
the deposition. This conference will allow you to
review a copy of the medical records, to understand
clearly your role, if any, in the injury that is
alleged. Allow your lawyer to explain to you what
is going on. Listen carefully. Chances are very
good that you are not the target of the lawsuit.
Remember that your employer, under most circumstances,
is vicariously liable for your acts and omissions
while done in the course and scope of your employment.
In plain English it means if you made a mistake
while you were doing your job and someone got hurt
as a result, your employer is responsible and has
insurance to cover it. Remember, every event that
sounds bad told by one side usually will have a
much more favorable "spin" when told by
the other side. Allow the Defending attorney to
supply the spin.
If you are called for a deposition
what can you expect from this highly intimidating
process? First, let’s set the stage. The deposition
will most likely take place in an attorney or court
reporter’s conference room. Present will be
the witness (you), a court reporter, and at least
one attorney for each side. You will be asked to
take an oath or affirmation that the testimony you
are about to give is the truth. As the court reporter
records every word that is said in the room, the
deposing attorney will usually begin with questions
about your background. If the case involves medical
malpractice and you are a caregiver, you can expect
questions about your experience, training, education,
where you worked and whom you worked for. There
will be questions about any licenses you may hold,
continuing education seminars you may have attended
and your relationship with your employer or former
employers. Any disciplinary action that has been
taken against you will probably come out. The reasons
you left each of your employers will be explored.
If the basis of the suit surrounds your actions
or the level of care you provided, you can expect
that the attorney for the Plaintiff will be sure
to get on the record any information that adversely
reflects on your competence.
The second part of the deposition
will usually surround a significant event or events.
Many lawyers like to structure their depositions
questions chronologically. That means he may begin
to get your account of the facts starting days or
weeks prior to the events. It is usually very important
to understand the chain of command in a company
and the policies and procedures upon which actions
are taken. For example, if the allegation surrounds
a medication error, expect to be asked which doctor
ordered the medication, who accepted and signed
off on the order, the process by which the medications
are checked out and the documentation procedure
used to be sure the right medicine, in the right
amount, is given to the right patient at the right
time. Where and when the error occurred, and why,
is vitally important to determining who is liable
for the Plaintiff’s injuries.
Many medical malpractice cases revolve
around documentation. If you made notations in a
patient’s chart you can expect a copy of a
chart to be placed before you. A good deposing lawyer
will have studied each entry thoroughly, and no
doubt will know what you wrote much better than
you. You will probably be asked to identify your
handwriting, initials or signature. Often, you will
be asked to read your notations aloud so they become
part of the record. Sometimes, when your recollection
of the facts is different than what discovery has
revealed to the deposing attorney, you may be asked
to justify your decisions, notations and reasoning.
Your notes may be entered into the
record as exhibits. That means that a copy of what
you wrote may be marked as an exhibit for the Court.
This is a way of identifying a document for later
use. That exhibit may someday be magnified onto
a 3 ft x 4 ft display board and set on an easel
in front of a jury. Each of your words may be picked
apart in detail. This is not intended to scare you,
but in previous articles we have emphasized the
absolute necessity of good documentation. Always
document as though a jury will read your words and
ask you to explain them.
Always speak clearly because the court
reporter must is write down everything you say.
Take your time. The witness controls the speed at
which questions are presented to her. If you need
a few moments to collect your thoughts before answering
a question, do so. It is not a race and there is
no prize for being finished first. Do not anticipate
the question before it is asked. Do not attempt
to answer questions that are not yet asked of you.
If the attorney feels he has not gotten a complete
answer, he will ask a follow-up question. No matter
what you may think of lawyers, you cannot outsmart
one as a deposition witness. Chances are very good
the deposing attorney knows the answers to all of
your questions before he asks them, including the
ones for which your answer is "I don’t
know". Most of all, be honest and direct.
What should you not do during a deposition?
Do not be overly helpful. That means to answer questions
with yes or no whenever possible. On the other hand,
do not be evasive. Try to avoid long rambling narratives
when the question asks for a yes or a no answer.
Try to avoid answering a yes or no question with
phrases like "not very much" or "it
wasn’t always that way". You can see that
these answers only open the door for more questions.
If you must qualify an answer it is best to start
with a yes or no, and then qualify the answer afterward.
Sometimes witnesses launch into such rambling and
pointless narratives that at the end of several
paragraphs of witness testimony the attorney is
forced to ask the original question again to get
an understandable answer. Also, only answer from
personal knowledge. Answers like "I guess so,"
"I assume so" or "I would think so"
are all answers that do nothing but confuse both
sides and necessitate the opposing counsel to cross
examine you to determine what you really knew or
didn’t know. This only serves to stretch a
long deposition into an interminable one. If you
do not understand a question, do not answer it until
it has been rephrased, and you are absolutely sure
of what you are being asked.
How long might a deposition take?
The answer is usually as dependent on the witness
as on the deposing attorney. Quite simply, expect
a deposition to take a long time. Witnesses who
are clear, concise and direct with their answers
find their depositions to be much shorter. Even
the deposing attorney can’t say for sure how
long the deposition will take because it is impossible
to tell what facts are going to be uncovered that
will require full exploration. Leave enough time
to arrive ten minutes before your scheduled time.
Wear comfortable clothes. Bring a sweater because
some depositions rooms tend to be drafty. You may
be offered coffee, water or a soft drink. If you
have a particular preference, bring your own. Some
attorneys videotape their depositions so dress accordingly.
If you have any questions beforehand, call the defending
attorney and ask. You will not be allowed to ask
questions after the deposition has begun.
Martin Khoury is a former ARRT-registered
CT technologist. He practices medical malpractice
and nursing home litigation with the firm of Quintairos,
Prieto, Wood & Boyer, P.A., in Miami: (305)
670-1101. Contact him by e-mail at mkhoury@QPWBLaw.com.
This column is for informational purposes only and
should not be relied upon as legal advice.
