Richard F. Cahill, JD, Vice President and Associate General Counsel, The Doctors Company
A deposition is a discovery tool used in virtually all forms of civil, administrative, and criminal litigation. It provides an opportunity for the defense and prosecution to identify information that is material to a claim, assist in developing strategies for trial, and formally preserve testimony for use at a later time.
Depositions are conducted under oath in a verbal question-and-answer format by counsel for all of the parties to the proceeding. Although the deponent (that is, the person being questioned) is often a participant to the legal action, more commonly the individual has specific—and possibly unique—knowledge relevant to the case.
The questioning may require several sessions and is frequently conducted over many days, with weeks or sometimes months in between sessions. Depositions are always recorded, traditionally by a certified shorthand reporter, who then transcribes the exchanges into a verbatim document that the deponent is required to sign. With increasing regularity over the past decade, the testimony is now also preserved by separate audio and video technologies.
Most deponents, whether a party to the proceeding or a witness, are represented by an attorney. Legal counsel can protect the interests of the client-deponent. In preparation for a deposition, counsel will meet with a client well in advance to explain the process; offer recommendations on demeanor, dress, and other important considerations; provide valuable suggestions on pitfalls to avoid; and identify probable areas of questioning by the attorneys who will attend the deposition.
Key Factors for Deponents
Contact The Doctors Company immediately for further assistance if you receive notice of a deposition as responses are time sensitive. Deponents must keep several key factors in mind.
Prepare in advance. The deponent must be prepared in advance about the likely scope of the examination and review materials that counsel provides. Advance preparation helps to expedite the process and better ensure the accuracy of the testimony. Opposing counsel is entitled to review any documents that the deponent has examined and to know the names of any individuals the deponent has spoken with about the case. The content of any conversation between the client and lawyer is, however, protected from disclosure as a matter of law by attorney-client privilege.
Tell the truth. The oath given at the outset of the proceeding is critically important. Although the swearing-in process varies by jurisdiction, all deponents must promise to “tell the truth, the whole truth, and nothing but the truth.” Failure to comply with the oath reasonably and in good faith when responding to questioning may be considered perjury that is punishable, often as a felony, by the prosecuting authorities and may result in fines, sanctions, and even imprisonment. A deponent who is caught in a lie will be cross-examined even more rigorously, and the court, arbitrator, or other administrative commissioner will likely allow greater latitude in the scope, tone, and severity of the interrogation. The oath also requires that responses are truthful, accurate, and complete. Embellishments, intentional omissions, and shading the truth are prohibited.
Answer the question asked. Deponents should listen carefully, answer only the question being asked, and then stop talking. Volunteering extraneous information prolongs the proceeding, identifies potential new areas of inquiry that opposing counsel may not have previously considered, and occasionally subjects the deponent to objections by any or all counsel, with corresponding motions to strike the unnecessary portion of the response. One classic tactic is for the attorney to pause, leaving dead air that tends to be uncomfortable and can lead the deponent to resume talking. This opens the possibility of revealing detrimental information not specifically sought by the original inquiry.
Consider yes and no responses. Deponents need to be careful of questions that apparently call only for a “yes” or “no” answer. This is a strategy frequently used by counsel to box the deponent into a simple and potentially damning response or admission against interest. If the question can be truthfully and fully answered with either a yes or no, respond and wait for the next question. If more information is necessary to be accurate, the deponent should state this on the record and wait for the lawyers to offer their opinions. The deponent will be given direction on how to proceed.
Provide accurate information. Deponents should do their best to provide the most accurate testimony at the time of the deposition. Although a transcript can be changed prior to the deponent’s final signature, corrections tend to lessen the individual’s credibility. If the matter proceeds, a heavily corrected transcript can even increase the probability that the deponent will be vigorously questioned during any subsequent appearance.
Maintain respect. When providing deposition testimony, be well prepared in advance, appear on time and appropriately attired, act professionally and courteously at all times, stay focused, and respond to the questions directly and with respect. Defer when counsel interrupt the proceedings with objections, motions, argument, or requests for clarification.
For more information on the litigation process in general, see “Coping With Litigation: Tips for Healthcare Professionals.”
If you are served with notice of a deposition, contact The Doctors Company immediately and our experts will guide you. Contact a claim specialist or patient safety risk manager on our 24-hour hotline at (800) 421-2368, or contact the Claim Administrative Support Team or a patient safety risk manager by email.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.