Depositions in Medical Malpractice Cases

Learn more about the importance of the plaintiff's deposition in a medical malpractice case and what to expect from the defense attorney's meeting.


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A deposition is an out of court statement given under oath, via question-and-answer format, that is usually taken at a lawyer’s office. The plaintiff’s deposition in a medical malpractice case is very important because it is the defense attorney’s first and only chance to meet you in person, find out what you are like, and hear what your story is. Most defense attorneys have two goals in taking the plaintiff’s deposition:

  • to get your story, and
  • to figure out whether you will be a good or bad witness

Getting Your Story

From the medical records and from your answers to interrogatories in a medical malpractice case, the defense attorney already has a good idea of what happened in your case, but still needs your deposition testimony to nail down exactly what your version of events might be.

Most good defense attorneys will be very friendly and cordial at a deposition. They leave the heavy tactics and cross examination for trial. At a deposition, the defense attorney wants to come across as your friend and lull you into dropping your guard and just talk like you’re having a normal conversation. A good defense attorney just asks questions and allows you to talk and talk. But, at a deposition, you must always remember the old line that everything you say can and will be used against you in a court of law.

How a Deposition is Used at Trial

Everything that is said at a deposition is transcribed into a booklet. After receiving it, the defense attorney (and your attorney) will pore through it looking for inconsistencies in your story. The more inconsistencies, the weaker your case. At trial, the defense attorney will refer back to your deposition to highlight any inconsistencies in your testimony. Your lawyer and you will want to ensure that you keep the inconsistencies in your testimony to a minimum.

Will You Be a Good or Bad Witness?

Even if your testimony has a minimum of inconsistencies, your appearance and mannerisms can cause you to be a less than ideal witness in front of the jury. Juries don’t like witnesses who are argumentative, rude, hostile, or who simply can’t or won’t answer the questions. Those types of witnesses don’t do well with juries. Plaintiffs who are bad witnesses don’t win as often at trial and get less money when they do win. And because plaintiffs who are bad witnesses don’t do well at trial, they get lower medical malpractice settlement offers because defense attorneys don’t mind going to trial against a bad plaintiff witness.

Preparing For The Deposition

Your lawyer will usually meet with you a number of times during the week before the deposition, to prepare you for what's in store. You will want to review your answers to interrogatories and any other statements that you made in the case beforehand, so that you and your lawyer can be sure that your deposition testimony will be as consistent as it can be with your prior statements. You will also want to be able to remember as many of your conversations with the defendants and your other treating physicians as you can. Depositions can focus quite minutely on who said what, and when.

It is important for you to be able to remember the sequence of events, but, under the pressure of a deposition with everyone in the room staring at you, it can be difficult to remember everything that happened. To combat this, your lawyer will usually practice with you. He/she will go over the potential line of questioning with you, and have you repeat your answers again and again until they are right.

Five Rules to Remember for Testifying in Depositions

If you are a good witness at your deposition, you will impress the defense attorney. Hopefully, you can convince the defense attorney that you will be a good witness at trial and that the insurance company doesn’t want to see you take the stand. How can you be a better witness at your deposition? There are five commonsense rules to follow:

  1. Listen to the question
  2. Understand the question
  3. Formulate your answer to the question
  4. Answer the question
  5. Answer only the question, and nothing else.

Listen to the Question

If you don’t listen to the question, you can’t answer it properly. Always listen to the question. If you feel that you are beginning to lose focus, ask to take a break.

Understand the Question

Don’t answer questions that you don’t understand. If you don’t understand the question, ask the defense attorney to repeat it. If you still don’t understand it, ask him/her to rephrase it. Don’t worry about the defense attorney getting annoyed. Your job is to answer the question. The defense attorney’s job is to phrase the question in a way that you can understand.

Formulate Your Best Answer

Don’t just blurt out an answer, especially for a long or complicated question. A deposition is a serious proceeding that can significantly affect the value of a medical malpractice case. Think about the question and what your answer will be. Only then, answer the question.

Answer the Question

Only after you have heard and understood the question and formulated your answer, then answer the question.

Answer Only the Question, Nothing Else

This is the hardest rule for witnesses to follow. You must always be on your guard. You don’t want to give the defense attorney more information than was requested. It is the defense attorney’s job to ask the right questions. Don’t help him/her out. Your job is to answer the question that was asked. Don’t volunteer information.

Learn more about the Timeline of a Medical Malpractice Case.

Updated by: , J.D.

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