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Likely, you have given depositions out of court, or in court as
a witness. But being a defendant in a courtroom is a very different
matter.
Two key factors are: to be fully prepared, and to be very mindful
of your demeanor. As discussed regarding your courtroom
testimony, the jurors have a favorable presumption which you don't
want to lose that.
Be sure to set aside time to not only prepare, but to compose
yourself and be rested. In a video deposition consider
what you wear. Depositions usually run a few hours to a day, and
occasionally can spill over to 2 days. The length of time depends
a lot on the style of the attorney. Be sure to ask for breaks when
you need time for composure, thinking, or to discuss matters with
your counsel.
Adopt the posture of an advocate for your cause, defending
and representing your own personal interest. Remember that
once in the deposition your lawyer has essentially no role. He can
prepare you, but then you must deliver. Objections at a deposition
are usually reserved until the time of the trial.
Your speech should be clear, paced, and calm. If
you would like to make an effort at improving your speaking without
going overboard, the book "Voice Power" by Renee Grant-Williams
is recommended for a few manageable, very effective tips.
Speak as if to patients more than to attorneys, because the jury
will function at the patient level.
Try to maintain the same style and demeanor in cross examination
as in direct examination.
Key points for you when you testify.
1) Review anything put in front of you, particularly medical reords.
2) If a hypothetical question is asked, you can answer this patient
was not hypothetical. I would need to see the patient to answer.
3) Don't express an opinion, deal with facts. Don't guess or speculate.You
can answer "I have no opinion."
4) Don't bring or cite any particular paper.
5) Don't interrupt the question, as the last word may change the
meeting.
6) Avoid citing a test or reference as authoritative, as some portion
of it can be used againt you later.
7) Don't give the deposition in your office or the hospital, becuase
other material there can sometimes be used in the deposition. For
example a book or journal may be cited by the plaintiff's attorney
becuase it is in your office.
Consider basic issues in tactics of the plaintiff's attorney.
The plaintiff's lawyer wants you to sit in a deposition and feel
guilty. Instead visualize that you are in a plaintiff lawyers office,
not neutral territory.
The point of the deposition is to lessen your credibility with inconsistencies.
1) One prominent Plaintiff's attorney stated that in depositions
he starts at the meat, asking “Do you have a memory of .."
regarding a particular visit. The answer is usually no, and now
you are stuck with what is in the record. The attorney has foreclosed
your memory.
2) Another common approach is to ask what was on your differential
diagnosis.
And another is to quiz you on basic pertinent anatomy to rattle
you, or look for a mistake.
3) If they ask: What have you done to prepare, what documents have
you looked at to prepare for today? Did you do any literature search?
This also is a potential trap. If you need to go to the literature
to research subject matter, talk to your attorney first. Some defense
attorneys do not want you to search the literature. If the source
has a sentence that contradicts your opinion, you have admitted
an expert opinion against you
4) What sources do you consider authoritative? A good answer is:
I do not consider any source authoritative. What I consider authoritative
is the sum of my training and experience,
5) Ask questions to see if your knowledge base is adequate, and
also if you are approaching it like you would in the case at issue.
Some lawyers will spend more time on general medical principles
than specific facts of case.
6) If they find a button in you they can push during the deposition,
they will likely push that button at trial.
7) The plaintiffs attorney will not ask questions in deposition
for issues they wish to avoid, and plan to bring up later.
What if you misspoke in the deposition? There is a provision
for making corrections. But the caveat is that the lawyer
at trial can comment on the change asking the jury to make an inference.
It is better to set records straight sooner rather than later. Also,
a change in the deposition can be cited as testifying outside of
the deposition, and then you may be called back for a further deposition.
How do you know what is accurately transcribed? Point it out if
you think a transcription is in error.
A variation on the depositions are interrogatories, written questions
from a lawyer to the adverse party. Answers are often poor, but
these are signed under pain and penalties of perjury. They need
to be as carefully considered as deposition answers.
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