CorrectCare

Learning the Art of Successful Testimony

by Deana Johnson, JD

If you think of a deposition as merely a question-and-answer session, if you have never been deposed or if you could have been a better witness during your last try, this article is for you. While it is impossible in a short space to highlight all of the components of a stellar deposition, this column will tell you what to expect before, during and after a deposition and demonstrate how the deposition fits into the case as a whole.

Since the vast majority of cases do not reach trial, the deposition may be your one chance to help your side of the case. If, on the other hand, your case does go to trial, you are stuck with the testimony you gave during your deposition. Either way, to perform your best at this critical meeting you have to know what to expect. Here are three important but little-known facts about depositions.

First, if the case is pending in federal court, anyone, including the media, can attend your deposition. In almost all other courts, the adverse party can, and often will, attend. Do not be surprised if you are sitting across the table from your now-disgruntled patient.

Second, most people expect their deposition to last an hour or two, but the majority of these proceedings last five to eight hours. Plan for an entire day and then be pleasantly surprised if you get done in less time.

Third, depositions of medical providers involve hundreds of pages of documents, whether records or policies. Be prepared to review the documents and read each one before answering the lawyer’s question. No matter how good your memory is, do not try to answer without reviewing the document you were handed. (Now you know why the deposition is going to last most of the day.)

Practice Makes Perfect
Now that you know better what to expect, let’s back up and address the critically important step of preparation for the deposition. The main purpose of the preparation session is to work with your lawyer to develop and understand your side’s theory of case and frame your testimony to support it. Each answer should lead the listener to understand and believe your theory, as opposed to giving the other side fodder for the jury.

The only way to achieve this goal is to practice the tough questions and answers and then practice them again. You should never hear the hard questions for the first time during your deposition. If your deposition will be videotaped, asked to have the preparation session videotaped and, as hard as it may be, watch yourself and learn from it.

Finally, you do not get many chances to sit and speak to your lawyer during the of the lawsuit: Use the preparation session to its fullest and help your lawyer build the case that meets your expectations.

Here are some tried and true deposition rules to help you get through that long day:

• Pause between every question and answer since the transcript does not reflect these important times to gather your thoughts before speaking.

• Ask for clarification, which ensures you are only answering what was asked and also serves to frustrate the cross examiner.

• Refuse to be led since the cross examiner’s goal is to get you to agree with his side’s theory.

• Do not perform the cross examiner’s work for him by giving information he did not ask for.

• Refer to the records often.

• Refuse to engage, which is the hardest rule for most medical providers to follow.

• Be consistent by not being afraid to repeat yourself, again and again and again. The cross examiner is trying to wear you down and get you to make that concession you fought so hard against the first 10 times he asked.

Remember that the goal of the cross examiner is to get as many concessions from the witness as possible to help his case. The goal of your lawyer is for you to say as little as necessary to answer the questions and further the defense theory of the case. As you can see, whichever attorney is more successful “wins” the deposition contest.

Review Your Words
Finally, one area few touch upon is what happens after your deposition is finally over. You will receive a copy and an errata sheet. It is important to read the entire deposition and make all changes, even minor ones, on the form. Other witnesses, including experts, will rely on that transcript in forming opinions about your actions.

If your case does proceed to trial, you have to know your deposition testimony backward and forward: This is your sworn testimony and if you deviate from it on the witness stand, the cross examiner is going to make you look terrible in front of the jury. If something has changed, you need an airtight explanation of why in order to remain a credible witness.

While it may appear that these guidelines apply only to depositions of named parties in the case, nothing could be further from the truth. If you are sent notification of your deposition, you should not attend unrepresented. Notify your employer and request a lawyer, since what you say could salvage or destroy the case as easily as the testimony of the named parties.

— About the author: Deana Johnson, JD, is a partner with Insley and Race, Atlanta, GA, and represents correctional medical companies and providers.

[This article first appeared in the Spring 2008 issue of CorrectCare.]