Deposition Discovery and Your Conduct As a Witness

Deposition preparationDeposition attitude and conductWitnesses and testimony at depositionDiscovery documents in litigation

Jul 26

Written By Martha Merrill-Hall

Conduct of the Examination

As a medical professional, you stand a decent chance of being involved in litigation, either directly or by peripheral involvement. Whether you, personally, have been named as a defendant or you were present during a situation deemed a violation of the standards of practice, being called to deposition can be a disturbing experience. Actually, it may be close to terrifying, especially if the examination is videotaped. Previously recorded deposition testimony is extremely important at trial. This form of discovery can make or break a verdict, for or against you or whomever you may be supporting/testifying against at trial. Your conduct, and that of the attorney who will be asking the questions, may have an extreme impact on the triers of fact; the judge and jury.

There are two types of deposition, Preservation of Evidence and Discovery. As the midwife expert or the defendant you will be participating in a discovery deposition, meaning an examination for finding facts. Depositions, like other forms of discovery, serve the purposes of narrowing the case issues for trial, gathering evidence for use at trial, discovering information about the existence of evidence that can be used by the opposing party, and committing the adverse party to a clear story.1

You will be extensively coached by your attorney prior to deposition. For the most part, you may not refuse to answer questions from opposing counsel at the time of your examination. An objection that a proper foundation has not been laid, the question was formulated poorly, or that it sought evidence that would not be admissible at trial is an improper basis for you, as a witness, to refuse to answer.2

The courts should not tolerate disruption of a deposition by repeated objections by opposing counsel. The local rules in many federal courts prohibit the use of abusive and disruptive tactics. For example, objections or statements that have the effect of “coaching the witness” or instructing the witness or suggesting an answer for the witness is not allowed.3

Questioning that unfairly embarrasses, humiliates, or harasses the deponent, or invades his or her privacy, absent a clear statement on the record explaining how the answers to the question will lead to competent evidence at trial.4 In some circumstances, a witness’s answer to a question may be followed by a motion to strike. In this case, the oral motion is recorded in the deposition. The judge overseeing the litigation will receive the motion and rule on it later. However, there are instances where the court is called during the deposition and an immediate ruling is obtained.

During the taking of a deposition, you, as the midwife nurse or physician witness, have the same legal rights and privileges as a witness testifying in court or at trial. You are permitted to refresh your recollection by looking at a copy of testimony that you may have given in prior litigation. At trial, only matters within the scope of direct examination may be gone into on cross-examination. At a deposition, however, the examiner may ask about anything relevant to the subject matter of the case.5

Deposition Preparation Outline

1. Manner of dress should be business-like.

2. Do not agree to waive reading and signing your deposition. You are allowed to read your deposition and correct errors.

3. Review with your lawyer what types of questions the opposing counsel will ask.

4. Review legal standards with your counsel.

5. Discuss what to bring to deposition, if relevant.

6. Inquire about the status of the litigation with your counsel.

7. In discovery deposition, opposing counsel’s goals are to:

-learn your opinions

-explore your qualifications, lock down your opinions, evaluate your credibility, examine you for bias, and gather as much information as possible.

8. Opposing counsel may try to intimidate you; be prepared for this.

9. Try to learn from your counsel as much as possible about the case.

10. You will be asked to bring your CV/resume. Make sure it is accurate and up to date. Bring more than one copy to your deposition.

11. Opposing counsel will ask you about prior statements or reports you may have written.

12. In regard to your involvement in the case, you will be asked when you were first contacted about the case and by whom. When you accepted the case.

13. You will be asked about records and documents that you have reviewed: which ones and when.

14. In regard to your educational background:

-what schools have you attended

-what were your major areas of study

-what degrees you have obtained

-what are the dates of your attendance and completion of degrees

-additional training courses, education you have completed

-continuing education courses; what and when

15. Have you been the subject of any disciplinary actions?

16. Have your licenses ever been revoked?

17. What were your grades?

18. Opposing counsel is not your friend; their goal is to intimidate you.

19. What professional organizations and societies you are a member of?

20. General Advice:

-tell the truth

-act naturally

-do not be angry or arrogant

-avoid using slang

-avoid arguing with counsel

-don’t elaborate

-don’t estimate

-don’t exaggerate

-don’t guess

-don’t interrupt the question

-don’t lose your temper

-don’t speculate

-don’t joke

-pause before answering

-read documents before testifying about them

-say you don’t know if you don’t know

-say you don’t remember if you don’t remember

-take breaks when you need to

-answer only what you are asked and do not volunteer information

-take adequate time to review any new documents you have not seen before.

-Prepare thoroughly with your counsel.6

1. Discovery: A Handbook for Colorado Practitioners. 2nd Ed. William H. Remine. Continuing Legal Education in Colorado, Inc. Colorado Bar Association/Denver Bar Association. 2000. § 7.1 Conduct of the Examination. 7-2.

2. Ibid. 7-3

3. Ibid. 7-5

4. Ibid. 7-6

5. Ibid. 7-7

6. Seak, Inc. Deposition Preparation Outline. www.seak.com.

https://www.midwivesontrial.com

witness intimidation at depositionrefusal to answer in depositionabusive tactics of counsel in depositiondeposition conduct and strategies

Martha Merrill-Hall

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