Checklist - Preparing An Expert Physician For Deposition
General Guidelines - Each Case is Fact Specific and Must Be Treated As Such
1.
Introduction: If the doctor has been deposed before and feels she does not need to be
prepared, ask her nicely to listen to you and, if you can give her one additional piece of
preparatory knowledge that will help her in the deposition (and in further depositions
down the road), that would be beneficial and make the speech worthwhile. Make sure they
are listening, attentive and ultimately PREPARED .
2.
Deposition Process in general - Court Reporter, attorney's and/or other office, no
judge or jury present. Ask to take an oath (can affirm for religious reasons if do not
want to swear). Questions and answers recorded verbatim by the court reporter and
embodied in transcript. If being videotaped, be aware of this at all times.
3.
Documents reviewed in preparation for deposition testimony. It is best if the doctor has
only read the relevant medical records and deposition testimony and relied on those
documents only to form the basis of their opinion(s) and expert report. You can
allow the physician to testify that they conducted research during the review process
(if they in fact did), but go over this thoroughly and discuss how this could be used
against them on cross-examination.
a. Correspondence from attorneys' office: Do not put anything in correspondence to an
expert that you do not mind coming in evidence. If opposing counsel wants a copy of
correspondence to your expert, get them to agree in writing or on the record that they
will provide all expert correspondence they send to their experts to you 5 business days
in advance of each expert deposition. You can then throw out the option that each side
can agree they will not request expert correspondence.
b. Conversations with attorneys: Explain to the expert that she may be asked about
conversations with you during this case and be prepared for what they will say.
4.
The deposition is not a conversation. It is a formal proceeding. No matter how friendly
and nice the opposing counsel may appear to be, their main purpose in life and for
existence on this earth while you are being deposed is to evaluate, examine and disqualify
you if possible. Lawyers use words like knives, don't get stabbed. Words to a lawyer are
like arrows, the lawyer's mouth is a finely tuned bow, avoid the arrows and don't get shot.
5.
Listen to each question carefully, do not say a word until the question is completed.
6.
If you have finished your question, just stop. Do not feel a need to fill a void of silence.
7.
If you don't understand a question, say you don't understand it (may not make sense from a
medical perspective).
1
8.
You are never off the record.
9.
No textbook, journal article, book or any other written or electronic informational
medical guide is authoritative. This is because if an expert defines a source as
authoritative, he is subject to cross-examination. In reality, most books/texts, etc. are not
completely authoritative when they are published as there is a lag time between state of
the art medicine and the publishing date. Allow expert to say they are an excellent
information source and aid, but by no means authoritative. What is authoritative to the
expert is his/her years of experience and expertise.
10.
You must prevent motor mouth. Try to answer yes or no to a question unless it will be
beneficial for the expert to amplify his/her answer in a teaching context. This is case and
witness specific.
11.
Listen to attorney's objections. They may help guide you, focus you, alert you to patent
ambiguities, repetitive questions, deceptive questions, misleading questions and assist
you in responding to questions. This is not coaching, but assuring that everything is
clear. Be patient and silent during discussions between attorney and opposing counsel listen and don't talk.
12.
Pause and consider each question before you answer (sometimes). Take time, think, then
answer. This is a tactic that works well sometimes depending on the witness and
situation.
13.
Do not take a break while a question is pending if you can avoid it.
14.
You are being evaluated as a witness also. The opposing counsel is thinking "what
impression will this expert make in front of the Board or an Administrative Law Judge"?
Maintain a pleasant, but formal demeanor. Don't let the opposing attorney's behavior
affect you in any way. Do not get angry or resentful. Do not laugh at the opposing
attorney. Do not be intimidated by the opposing attorney's tone of voice or sarcastic
comments or other actions such as table pounding, screaming, grimacing or impatience.
Do not verbally spar with the attorney or try to demonstrate that you know more than he or
she does.
15.
If you are tired, confused or simply want a break, just ask.
16.
Allow and specifically prepare the expert on the following areas:
a. Prior lawsuits.
b. Prior disciplinary proceedings.
c. Percentage of income and time spent on expert review of malpractice and Board
cases (plaintiff and defense).
2
17. Do not allow opposing attorney to close the door with regard to "Have you told me all of
the opinions you have regarding this case?" When you hear that question, have
your expert prepared to say, "If you have a specific question, I'd be glad to answer it. I
believe I have told you all my general opinions and concerns at the present time subject
to further review, questioning and analysis (i.e. new records, testimony of further
witnesses and other things)."
18.
Make sure you know when expert reviewed case and have them state that they formed an
opinion of the case only after they reviewed the relevant medical records (and possibly
deposition transcripts) and not before when they spoke with you or other Board staff
member.
19.
Remember to ask your expert the following if opposing attorney does not:
a. Departures
b. Causation (if necessary)
c. Damages (if necessary)
20.
Don’t Guess.
21.
Do mock deposition and block out as much time as you need.
3