Deposition dos and don’ts: How to answer 8 tricky questions

You must tell the truth, but you can answer honestly without hurting your case

uring your deposition in a malpractice® Dowden suit, Health Media would you know how to answer if the plain- Dtiff’s counsel asked you: “Doctor, are you say- ing it was impossible toCopyright foresee Mr. Jones’For suicide?” personal use only Ninety percent of malpractice cases are settled before trial, and the deposition often is the turning point.1-3 Your answer to tricky questions such as this could fa- vorably affect a critical stage of litigation—or spur the

plaintiff’s attorney to pursue the case more vigorously. PSYCHIATRY Even if a case is settled in the plaintiff’s favor before

trial, the deposition’s effectiveness may determine CURRENT whether the settlement is $300,000 or $1 million. FOR Don’t go to a deposition unprepared. This article of- fers guidelines to help you anticipate many different LAROTONDA scenarios and includes examples of honest, skillful an- CRAIG swers to 8 diffi cult questions (Box 1, page 26).3-7 James L. Knoll, IV, MD Associate professor Director of forensic psychiatry Digging for pay dirt SUNY Upstate Medical University Discovery begins after a formal complaint alleges mal- Syracuse, NY practice. The parties to a lawsuit gather information Phillip J. Resnick, MD through written interrogatories, requests for documents, Professor of psychiatry Director of forensic psychiatry and witness depositions—out-of-court testimony to be Case Western Reserve University Medical School used later in court or for discovery purposes.8 Discov- Cleveland, OH ery’s rationale is to reduce surprises at trial and encour- age pretrial settlement. The witness being deposed is the “deponent,” and testimony is given under oath.9 A discovery deposition is designed to gather infor- mation, with almost all questions asked by opposing counsel. If you are sued for malpractice, this is the type Current Psychiatry of deposition you probably will encounter. Vol. 7, No. 3 25 continued

For mass reproduction, content licensing and permissions contact Dowden Health Media. Table 1 counsel if other attorneys or the plaintiff 5 goals of the plaintiff’s will be present. attorney at a deposition Not-so-hidden agendas. The plaintiff’s Lock down testimony for trial attorney’s primary goal is to gather as much information as possible about your Scrutinize defendant’s qualifi cations side’s case4 (Table 1). No matter how ac- Depositions Size up defendant’s effectiveness as curate the medical records may be, they a witness require interpretation and follow-up ques- Probe defendant for bias, arrogance, tioning of key players to get the full story. or hostility Opposing counsel also wants to: • “lock down” your testimony for use Learn as much as possible (‘fi shing’) at trial (testimony captured at a deposition can be used to impeach a witness who gives Rules of engagement. The plaintiff’s at- inconsistent testimony at trial)9 torney initiates the discovery deposition. • “size up” your potential impact on a Clinical Point Ground rules vary by jurisdiction, but in jury by assessing your strengths and weak- Avoid the temptation general the Rules of Civil Procedure give nesses as a witness.11 to schedule the deposing counsel substantial latitude in The impression you make may infl uence the questions that can be asked.10 The de- the opposing attorney’s decision about how deposition in your ponent and defending counsel, opposing far to pursue the case. Plaintiffs’ attorney offi ce, even though counsel, and transcriptionist typically at- Bruce Fagel once told an interviewer that that might seem tend the deposition. To help you prepare defense attorneys, too, may consider set- convenient for you appropriately, confi rm with your defense tling a case “if their client shows such arro- gance in our deposition that they’re afraid to let him appear in front of a jury.”12 Honest, skillful answers to 8 tricky deposition questions

1 The Impossible Dream Q. Doctor, with a psychotic suicidal 4 Did I Say That? In law, there is a distinction patient, would you agree that the Opposing counsel may between possibility standard of care requires you to...? mischaracterize or and probability. The A. I can’t agree with you that in this case distort your testimony by law considers anything we are talking about a psychotic attempting to ‘paraphrase’ ‘possible,’ but something suicidal patient. Do you still want me to what you’ve said. is not probable unless it is more likely answer the question? Or than not (expressed mathematically, its A. I can’t answer that based on the few Q. Now doctor, as I understand it, chances are ≥51%). facts you’ve given me. I’d need to see what you’re really saying is that that patient and examine her fi rst. the patient...? Q. Doctor, are you saying it was A. No. Or impossible to foresee Mr. Jones’ A. No, that’s not an accurate summary suicide? 3 Invitation to Speculate of what I just said. A. I don’t know of any way the Refrain from speculating, suicide could have been foreseen. especially when It was a terrible, tragic loss that was not you’re presented with 5 The Authoritative Treatise possible to foresee. an incomplete clinical Opposing counsel picture. wants you to acknowledge a specifi c piece of 2 The Hypothetical Q. Doctor, is it fair to say that a literature as ‘authoritative’ When confronted with patient with those symptoms in psychiatry, so that questions containing a should be referred to a neurologist? counsel can then impeach you at trial hypothetical, identify the A. I really can’t speculate based on with points from the literature that hidden assumption that limited information. I’d just be contradict your testimony. Although before answering. guessing. you may be made to look foolish if

Current Psychiatry 26 March 2008 Choosing a site. Most depositions take being well-prepared for the deposition place in a conference room in one of the may relieve some anxiety. attorney’s law offi ces or at a neutral site. Avoid the temptation to schedule the de- Review the case. At least twice, carefully position in your offi ce, even though meet- review the entire database—including ing there might seem more expedient and medical records and other fact witness comfortable for you.9 Scheduling the depo- discovery depositions. Perform 1 of these sition at your site: reviews just before the deposition.3 Having • might make you feel it is “just another the details fresh in mind will help you if day at the offi ce” and dissuade you from opposing counsel mischaracterizes infor- preparing suffi ciently or taking the deposi- mation when questioning you. tion seriously • allows opposing counsel to scrutinize Meet with your attorney. Insist on at least diplomas, books, journals, and other mate- 2 predeposition conferences with defense rials in your offi ce. counsel. Questioning you about these materials At the fi rst conference, volunteer all during the deposition is not off limits for the pertinent information about the case as Clinical Point plaintiff’s attorney. You might fi nd it diffi cult well as any noteworthy medical inconsis- A mock deposition 2 to explain why a book on your bookshelf is tencies. Find out what documents to bring with your attorney not “authoritative.” to the deposition, who will be present, and the expected duration. You might wish to can improve your prepare mentally by inquiring about the eff ectiveness as a Prepare, prepare, prepare style and personality of opposing counsel. witness and reduce Your emotional stress will probably wax Defense counsel does not control how your anxiety and wane during the lengthy litigation long a deposition lasts but might be able process.13,14 Knowing what to expect and to give a rough estimate. Plan accordingly,

you refuse to acknowledge anything explain to avoid giving a misleading diabetes who is on olanzapine as authoritative, this usually is the answer will make opposing counsel should be tested for...at least safest course. appear defensive if he does not agree. once a month, and that if there is evidence of...then the standard of Q. Doctor, do you accept Kaplan & Q. Doctor, please answer the care requires you to...? Sadock’s Comprehensive Textbook question; it requires only a simple A. Please ask me those questions again, of Psychiatry as an authoritative yes or no. one at a time. reference in your fi eld? A. I cannot answer that question with A. It is certainly well-respected, but only a yes or no. Would you like me to the entire text can’t be considered explain? Or 8 Give Me More authoritative. Or A. A mere yes or no answer to that Opposing counsel may A. Signifi cant portions may be question would be misleading. May I try to ‘fi sh’ for more authoritative, but I would need to see explain? information. You are under the portion in question to be able to no obligation to make his answer your question. or her job easier. Answers 7 Convoluted Compounds that contain a qualifi er are useful. When opposing counsel PSYCHIATRY 6 The Tyranny of Yes or No asks you a double- or Q. Doctor, to your knowledge, In an effort to control you, triple-jointed question, ask have you told me everything you

CURRENT opposing counsel may him or her to reframe or consider important about your demand only yes or no breakdown the inquiry into patient’s death by suicide? FOR answers. Listen closely simpler questions. A. I have told you all the information I can to each question, and remember at this time.

BIESINGER determine if you can convey the whole A. Doctor, would you agree that a truth with ‘yes’ or ‘no.’ Asking to further patient with a family history of Source: References 3-7 RAYMOND

Current Psychiatry Vol. 7, No. 3 27 Table 2 ple, when a case is close to settling, your Malpractice: How to prepare attorney might instruct you to lay out all for your deposition evidence that supports your professional judgment and clinical decisions in the case. Thoroughly review case records Do not use this approach, however, unless your attorney specifi cally instructs you to Master the case (memorize key names, do so. dates, facts) Depositions You are under no obligation to make op- Meet with defense counsel at least twice to: posing counsel’s job easier. In a discovery • fi nd out deposition’s location, who deposition, volunteering information may: will be present, and expected duration • open up new areas for questioning • learn what documents to bring • equip the deposing attorney with more • understand opposing counsel’s style ammunition and personality • prepare for diffi cult questions • eliminate opportunities for your at- • consider having a mock deposition torney to use surprise as a strategy, should the case go to trial. Double-check your curriculum vitae Clinical Point Consider, for example, a scenario in for accuracy and updating Remain composed which you and a hospital are sued in re- Come to the deposition well-rested when answering gard to an inpatient suicide case. At depo- sition, you might be asked whether you questions, and and allow for suffi cient scheduling fl ex- can identify written evidence anywhere in resist the urge to ibility. Depositions typically last half a day, the patient’s chart that the decedent was counterattack; but they can last more than 1 day. checked every 15 minutes. strive for humility At a later predeposition conference, de- The correct answer would be “no,” even fense counsel might walk you through a though you know 15-minute checks are and dignifi ed mock deposition that involves diffi cult or documented in a log kept at the nursing confi dence anticipated questions. This is a good op- station in this hospital. You might be tempt- portunity to master your anxiety and im- ed to reveal this information, but leave the prove your effectiveness as a witness. timing of its disclosure to the defense at- You also may wish to go over your cur- torney. Your attorney’s strategy may be to riculum vitae with defense counsel and reveal this critical piece of information at check it for mistakes or other content that trial, when the plaintiff’s attorney has less might raise problematic questions during opportunity to strategize ways to discredit the deposition (Table 2). Make sure your the evidence. c.v. is up-to-date, and refresh your mem- ory if it lists lectures given or articles writ- Keep your cool. Attorneys have different ten—no matter how long ago—on topics styles of questioning, depending on their related to the litigation. personalities. Some may be excessively po- lite or friendly to get you to let down your guard—only to set you up for a devastat- On deposition day ing blow at the deposition’s end (or save Don’t open Pandora’s box. Keep your this for trial). Other attorneys might em- answers to deposition questions brief and ploy a “bullying” style that seeks to intimi- clear. Opposing counsel may ask broad date. In responding to questions, always questions, hoping to encourage rambling remain composed and resist the urge to answers that reveal new facts. Answering counterattack. questions briefl y provides the least infor- In all circumstances, strive for humil- mation to opposing counsel and is best un- ity and dignifi ed confi dence. Opposing der most circumstances. counsel gains the advantage when defen- One exception may involve scenarios in dants lose composure or become angry, which the defense attorney instructs you, defensive, or arrogant. Indeed, experi- for various reasons, to provide informa- enced plaintiff’s attorneys may be testing Current Psychiatry 28 March 2008 tion beyond the question asked. For exam- for precisely this reaction in the hope that continued on page 36 continued from page 28 a defendant will “demonstrate his arro- Table 3 gance” during the deposition or later on Deposition dos and don’ts the witness stand.12 In working as expert witnesses in mal- Always tell the truth practice cases, we have observed many Actively listen to questions, and pause instances in which a defendant psychia- before answering trist’s arrogant or hostile remarks at depo- Depositions sition played a key role in causing the case Keep your cool; never lose composure to be prematurely settled in the plaintiff’s Answer only the question asked favor. Stop speaking and listen carefully if your Avoid making jokes or sarcastic com- attorney makes an objection ments. Even a well-timed, self-deprecating joke may backfi re should opposing coun- Avoid long narratives, and don’t volunteer sel take the opportunity to point out that information the case is a “serious matter.” Don’t speculate or guess

Avoid absolutes such as ‘never’ or ‘always’ Clinical Point Listen carefully to each question during To avoid guessing the deposition. Pause for a moment to Avoid jokes, sarcasm, and edgy comments about something consider the question and allow time for Ask for breaks if needed to keep from other attorneys to object.5 Your attorney’s becoming inattentive you’ve forgotten, objection may suggest the best way for you Carefully examine qualify your answer documents, reports, to respond to the question. Refrain from etc. before answering opposing counsel’s with a statement answering any questions when defense questions about them counsel advises you to do so (Table 3). such as ‘to the best Ask for clarifi cation Don’t answer questions you don’t un- of confusing questions of my recollection’ derstand. Rather, ask for clarifi cation. Avoid using adjectives and superlatives Remember that nothing is ‘off the record’ such as “never” and “always,” which may Don’t waive your right to read and sign the be used to distort or mischaracterize your deposition transcript testimony at trial.

Don’t guess. No rule prevents opposing • who signed and/or authored it counsel from asking a witness to speculate, • when it was prepared and dated but generally avoid doing so. You are re- • whether it is a draft copy quired to tell the truth—not to speculate or • whether it contains confi dential infor- volunteer guesses. The best way to cause mation relating to patients other than a jury to disbelieve your testimony is to the plaintiff make inaccurate or unfounded statements, • whether it is attorney-client privileged which opposing counsel will surely point • and—most importantly—whether op- out at trial. posing counsel has quoted portions of Don’t be tempted to “plumb the depths” the document out of context. of your memory for a forgotten piece of in- formation, however. If asked, for example, Procedural pitfalls. Throughout the de- if a patient displayed a specifi c symptom position, the attorneys may periodically during an appointment 4 years ago, the tell the court reporter they wish to have a true answer is likely to be “not that I re- discussion “off the record.” Nothing is off call,” rather than “no.” Qualify similar an- the record for you, however. If you make swers with statements such as “to the best a statement when the court reporter has of my recollection,” or “not that I recall at been told to stop, opposing counsel can this time.” summarize on the record everything you If opposing counsel asks questions said during that time. based on a particular document, request to At the beginning or end of the deposi- Current Psychiatry 36 March 2008 see the document. Review it carefully for: tion, one of the attorneys may ask if you continued on page 39 continued from page 36 wish to retain or waive the right to read Box 2 and sign the deposition transcript. Seek Persona adopted by your counsel’s advice, but defendants usu- plaintiff s’ attorneys to obtain ally choose to retain this right. Typically, information at deposition you will have 30 days to read the transcript and correct any errors. Keep in mind, ‘Mr./Ms. Friendly.’ Some attorneys look though, that substantive changes that go for an opportunity before the deposition beyond typos are likely to be the subject of begins to show that they are ‘friendly’ intense cross-examination should the case and not to be feared. Remember that go to trial.9 discussions with opposing counsel Depositions are sometimes videotaped, without defense counsel present are not usually because a witness will not be avail- appropriate. able at the time of trial. Because the jury ‘Eager Student.’ Opposing counsel may will hear and see you, approach a video- play the ‘eager student’ to massage your taped deposition as if it were an actual tri- ego and pave the way for long narratives al. Dress appropriately, speak clearly, and and volunteered information. look directly into the camera. Don’t feel Clinical Point embarrassed about making sure you are ‘Counselor Clueless.’ Opposing counsel Witnesses are most may appear so ignorant of certain facts videotaped with the best possible lighting, likely to make camera angle, and background. that you can scarcely resist jumping in to educate him or her. mistakes after

Silent treatment. After you give a brief, 4 PM, so ask for a Keep your guard up honest answer, opposing counsel may sit break if fatigue Don’t allow yourself to be distracted if op- silently as if expecting a more substantive starts to aff ect your posing counsel jumps from open-ended response. Resist the temptation to fi ll the questions to clarifi cation questions to “pin- silence. concentration ning down” questions. Using an erratic ap- proach could be part of opposing counsel’s strategy. Answer only the question asked, Opposing counsel may approach the and give the shortest correct answer to deposition with a particular demeanor— each question. such as friendly or eager to learn—in an Opposing counsel may ask a question in attempt to get you to let down your guard a way that suggests substantial confusion and speak more freely (Box 2). or misunderstanding. If this confusion does Particularly in a full-day deposition, the not affect your testimony, you don’t need greatest likelihood of making mistakes be- to clear up matters for opposing counsel. If, gins around 4 pm. Indeed, some attorneys for example, opposing counsel asserts that may reserve especially important questions one of your statements was contradictory, for this time period, hoping that the witness an appropriate response may be simply, will be less guarded. Be sure to start the day “No, it wasn’t.” It is opposing counsel’s job well rested, and ask for breaks if fatigue be- to explicate further details.11 gins to affect your concentration.

Bottom Line Before a deposition, master the records and facts of the case and have a clear understanding of opposing counsel’s goals and strategies. Prepare thoroughly, alone and with your attorney, because opposing counsel will be sizing you up as a witness. Approach the deposition with humility, confi dence, and a good Current Psychiatry understanding of how to answer diffi cult questions honestly and skillfully. Vol. 7, No. 3 39 continued References 1. Babitsky S, Mangraviti J. The discovery process. In: How Related Resources to become a dangerous expert witness: advanced techniques • Professional Risk Management Services, Inc. The Psychiatrists’ and strategies. Falmouth, MA: Seak Inc; 2005:4-9, 113-39. Program. www.psychprogram.com. 2. Clark A, Fox P. The defendant physician’s deposition: fi ghting back—at last! Mo Med 2002;99(10):524-5. • Simon R, Sadoff R. Psychiatric malpractice: cases and comments for clinicians. Washington DC: American Psychiatric 3. Rice B. Malpractice: how to survive a deposition. Med Econ 2005;82:45-8. Press, Inc; 1992. 4. Babitsky S, Mangraviti J. How to excel during depositions: Drug Brand Name techniques for experts that work. Falmouth, MA: Seak Inc; 1998. Olanzapine • Zyprexa Depositions 5. Gutheil T. The psychiatrist as expert witness. Washington Disclosure DC: American Psychiatric Publishing, Inc; 1998. 6. Babitsky S, Mangraviti J. How to excel during cross- The authors report no fi nancial relationship with any examination: techniques for experts that work. Falmouth, company whose products are mentioned in this article or with MA: Seak Inc; 1997. manufacturers of competing products. 7. Hirsch C, Morris R, Moritz A. Handbook of legal medicine. 5th ed. St. Louis, MO: CV Mosby Co; 1979. 8. Black H. Black’s law dictionary. 8th ed. St. Paul, MN: West Publishing; 2004:440. Be alert to a pattern of questioning de- 9. Babitsky S, Mangraviti J. Depositions: the comprehensive signed to elicit only “yes” answers. This guide for expert witnesses. Falmouth, MA: Seak Inc; 2007. 10. Cornell Law School. Federal Rules of Civil Procedure. technique—commonly used by salesper- Depositions and discovery. Rule 26(5)B(1). Available at: sons—makes it diffi cult to say “no” in re- http://www.law.cornell.edu/rules/frcp/Rule26.htm. Accessed January 18, 2008. sponse to an ambiguous question. 11. Culley C, Spisak L. So you’re being sued: do’s and don’ts Point out errors if opposing counsel for the defendant. Cleve Clin J Med 2002;69(10):752-60. 12. Rice B. How I pick the doctors I’ll sue. Med Econ misquotes earlier testimony or states facts 2004;81:54. incorrectly. These mistakes may be in- 13. Charles S. Coping with a medical malpractice suit. West J nocent or a deliberate attempt to distort Med 2001;174:55-8. 14. Charles S. Malpractice distress: Help yourself and others your testimony. survive. Current Psychiatry 2007;6(2):23-35.

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