Why Defendants Should Never Go Into a Deposition Without Their Attorney

You’ve decided to represent yourself in court. You didn’t do anything wrong, and you just need to give a few straightforward answers and get on with your life. Why would you need to pay an attorney just to stand in the corner while you answer a few questions?

If Your Attorney Is Quiet in a Deposition, He’s Probably Doing His Job Well

Many deponents assume they do not need an attorney to be present for questioning because attorneys rarely take action in a deposition. What they do not realize is that most of the necessary work of a deposition takes place beforehand, so if your attorney has done a good job preparing you, he will likely say very little on the day of your actual deposition.

An attorney’s most vital role is to prepare his client. This may be your first deposition, but attorneys have seen the process hundreds of times over—and if they are worth their salt, they will:

• Play devil’s advocate. Your attorney should make sure that there is no public information that could contradict your testimony. This includes looking through your social media accounts, shared photographs, and any other potential evidence that could disprove what you tell the opposing attorney. By finding these pitfalls early, your attorney can prevent you from looking untruthful in front of a judge.
• Use insider knowledge. Most lawyers have been on both sides of the deposition table, so they know exactly which tactics are used to get the answers they want. For example, probing questions are designed to get a rise out of a witness, prompting him to give a knee-jerk reaction that can cause his testimony to unravel.
• Ensure the truth. Depositions are not mere question-and-answer sessions; they are sworn testimonies given under oath. If you give an answer that is later found to be untrue, you open yourself up to charges of perjury before you have even entered a courtroom. An attorney can help you separate facts from opinions, allowing you to deliver answers that are both accurate and effective.
• Hone your testimony. You may have prepared your own responses, but lawyers know that what you say in a deposition is just as important as how you say it. Giving the answer “I think it was 12:30,” is vastly different from “I was home at 12:30,” and is just one of the ways an inaccurate or vague response can hurt your case.

Even if you do not want to hire an attorney to appear with you at trial, you should consider consulting with a lawyer to help you along the way. You may be able to handle the paperwork on your own, but a little strategizing and advice can go a long way when you’re alone on the stand.

You think you’re finally ready to testify in court. Your attorney has advised that you keep your answers short and to the point, and to take each question slowly to make sure your answers are accurate. But how can you prepare for questions that may be designed to trip you up or throw your testimony off balance?

Three Tips for Answering Questions in a Worker’s Compensation Deposition

The first thing to remember is that you must tell the truth in response to any questions you are asked. Your testimony is being taken under oath, and any untruthful answers may be seen as perjury and result in fines or jail time. When in doubt about how to answer a question, give a response as close to “yes” or “no” as you can.

While you must answer all questions truthfully, there are still many different ways to give an honest response. Consider the different ways a deponent could answer the following questions:

• Where do you have pain? Many deponents fall into the trap of nodding and pointing during a deposition. While it is natural to respond to a location inquiry by pointing, you must also state the location for the court record. By the same token, responding “uh-huh,” and “nope” are poor testimony; they are likely to be misheard by anyone in court, but they are also weak answers to questions that should matter a great deal to you.
• What was your diagnosis? Deponents should be wary of giving responses that involve specific medical procedures or diagnoses. You are not a doctor; you shouldn’t be expected to give more than a layman’s description of your injuries. Your attorney should have names of doctors and medical records that can be used to answer the questions instead.
• Did you have any other ailments before your work accident? It’s unlikely that you have never been hurt prior to your accident at work, but those may have been minor or completely forgotten in light of your new injury. Remember that the opposition may have access to your medical records, so anything you say must be backed up with evidence.

The defense attorney may also ask you questions regarding military service, surgeries, lasting pain, your physical abilities (such as climbing stairs), personal activities (such as travel), additional sources of income, and treatment if applicable.

You’re sure you did nothing wrong in the operating room. You’ve gone over your testimony several times with your attorney, and you’re looking forward to the day of your deposition so you can set the record straight.

However, it is often this type of attitude that can get defendants into trouble—especially when they have been accused of medical malpractice.

How to Survive Your First Medical Malpractice Deposition

The first thing to remember as you enter your deposition is that the less you say, the better. Many nurses and physicians make the mistake of thinking that their deposition is an opportunity to give their account of what happened. Even if they explain things clearly and intelligently, they often open themselves up to grievous errors in their testimony—especially if they give a long-winded account of the events.

The Dos and Don’ts of Testifying in a Medical Malpractice Deposition

• Don’t try to read the opposing attorney. Many defendants will look for cues on how the deposition is going based on the opposing counsel’s attitude. You should be aware that attorneys have spent years honing their line of questioning and controlling their demeanor in order to keep control of the discussion. Don’t be fooled by a friendly attitude, and don’t be bullied by a belligerent tone: keep your responses calm and even.
• Have your basic medical facts down. As a healthcare professional, you will likely be questioned on all basic medical facts involved in your case. Opposing counsel will try to find evidence that you made a mistake, and the first step is often discovering whether or not you are professionally competent. It is vital that you understand all of the medical terminology and components of your case.
• Use your attorney/client privilege. Any conversations you have with your attorney are protected, so you should use this time to your advantage. Opposing counsel cannot ask you questions about what happened in the lawyer’s office or what advice your lawyer gave you, and usually cannot inquire about methods used to build your case. For example, if you and your attorney performed additional research on common treatments in case you are asked about them on the stand, that research is confidential.

If you remember nothing else, remember to take your time during the deposition. Anything you say will be picked apart by the opposing attorney, and once you have given information it will be hard to retract it. Pause after each question and make sure the answer is correct, and that it provides only the information that you were asked for. Saying too much is far more dangerous than saying too little, since opposing counsel can (and will) always ask you for more information if it’s needed.

Do you know what to do if you are asked a personal question in a deposition?

You’ve been told how important it is to stay calm in your deposition sessions, but it’s almost impossible for you to follow that advice. So much is riding on what you say, and you’ve never been in this situation before. How can you be sure not to make a mistake that will cost you for the rest of your life?

5 Mistakes to Avoid As You Prepare for a Personal Injury Deposition

Unfortunately, many people in this situation let their nervousness get the best of them. They just want to get the deposition over with—answering questions quickly, and trusting that the judge and jury will believe them when it is time to go to trial. While there are many mistakes that you could make during your deposition, the biggest blunders are quite easy to avoid. For instance:

• The knee-jerk response. At the beginning of your deposition, you will be asked simple identifying questions such as your name, address, date of birth. However, the questions may change from simple to complex without warning, prompting many deponents to confidently give inaccurate answers. An example: the attorney follows “how long have you worked at your company?” with “are you a good employee?” The first question asks for a fact; the latter asks for your opinion.
• Assuming. Attorneys have likely taken hundreds of depositions before yours, and may use language you are unfamiliar with. For example, if an attorney asks if your pain is intermittent, and you say yes, he may ask about the periods when you are not in pain. (Many people assume that “intermittent” means “constant,” but it actually means “every so often.”) If you’re not 100% sure what an attorney is asking you, always say that you do not understand, and they will have to restate their question in natural language.
• Exaggerating. Taking the stand may feel a bit like going on stage: everyone is waiting to hear what you have to say, and your testimony is like a performance. It is important to stick to only the facts when giving a response. Questions such as, “How much pain are you in?” are not possible to answer with facts, and will likely evoke an emotional response, such as, “The most pain I have ever felt in my life.” Once you have said this, the attorney may attempt to disprove your testimony, making you seem untrustworthy.
• Approximating. One of the worst mistake deponents make is guessing at answers to deposition questions. If you are asked a question about an event and you do not know or do not remember, say so. If you are asked to approximate, estimate, or guess at an answer, refuse.
• Taking an attorney’s word. It is up to the attorney to collect documents that back up his line of questioning, so if you are asked a factual question that can be proved on paper (such as in your medical records), ask to see the document before responding. It is important to remember that the attorney taking your deposition is not asking questions because he does not know the answers. In most cases, he knows the answer to every question asked of you; his goal is to find out how you will respond.

It’s almost unbelievable to think that you could lose everything because of one simple mistake. Your medical license, your job at George Washington hospital, the income that you and your family depend on—all of your livelihood depends on your ability to defend yourself in your medical malpractice case.

While you may not have made a mistake in the operating room, you can still make one in your deposition that can cost you for the rest of your life. With so much at stake, how can you know what to do and say during questioning that will save your job and your reputation?

Three Things to Remember When Giving a Deposition as a Co-Defendant in a Malpractice Case

Many medical malpractice cases involve multiple defendants, such as the surgeon, nurses, and hospital where the medical error occurred. In these situations, it can be difficult to know what to say to protect your own liability. Should you look out only for yourself? Should you deny any other involvement? And how can you explain your actions in court in a way that convinces the jury you are not to blame?

Before you give your deposition, remember these three things about testifying in a case with co-defendants:

• Don’t abandon your co-defendant. If your attorney has recommended that you keep a united front with the other defendants, do so. Too many defendants turn on their co-workers when they are questioned, thinking it will prevent them from shouldering any blame. In fact, the opposite is almost always true: if you imply that a coworker was liable, he may do the same to you, strengthening the opposition’s case.
• Keep your opinions to yourself. In many cases, nurses and doctors who are named as co-defendants may not get along, or even like each other. Personal opinions have no place in a courtroom; remember, the way you feel about a person has little bearing on how she does her job. You will have to cooperate with your co-defendants in order to win the case, so avoid sharing any information about your coworkers that could be potentially harmful unless specifically asked.
• Do not blame your employer. If one of your co-defendants is a corporate entity (such as the hospital), your attorney may recommend that you not say anything that implies guilt on its behalf. Some attorneys attempt to separate a worker’s liability from his employer’s in a co-defendant case in order to get the corporation dismissed. There are pros and cons to this strategy: if the hospital is dismissed from the case, you may also be dismissed; on the other hand, you may shoulder the burden alone if you are found liable.

The best thing you can do to prepare for your case is to go over your testimony with your attorney so that you provide accurate and truthful responses to each question.

You Don’t Have to Answer Every Deposition Question (And In Some Cases, You Shouldn’t)

Your attorney has prepped you for your deposition. You’re pretty clear on what will happen, who will be present, and what you should do if you are unable to answer a question. But what if you can answer a question, but you don’t think you should?

This is a typical occurrence at many depositions. While the deposing attorney will ask questions that are relevant to the case, they may also repeat questions to make sure your answers are consistent, or ask questions that are meant to embarrass or enrage you. Often, these questions will be damaging to your case if you answer them truthfully—and of course, you have sworn to do so. So what are your options?

Which Questions Shouldn’t I Answer in a Deposition?

You can object to any questions in a deposition, but you may be compelled to answer if a judge overrules the objection in court. In many cases, questions that do not have to be answered fall into three categories:

• Private information. You have a right to refuse any questions about a person’s health, sexuality, or religious beliefs (including your own). The opposing attorney will have to explain how your answer has a direct bearing on the case in order to compel you to answer.
• Privileged information. Confidential conversations that take place between a doctor and a patient, you and your psychiatrist, a lawyer and his clients, or a confession given to a priest are examples of privileged information.
• Irrelevant information. Any question that you think is improper or does not have any bearing on the outcome of the case may be irrelevant. If one of these questions is answered, your attorney will likely stop you from answering and object on your behalf. If he does not, you may object to the question yourself.

How Can I Tell Which Questions Are Irrelevant?

If you aren’t sure what the point of a question is, stop and ask yourself if the answer could have a bearing on how a judge would decide your case. For example, you may not wish to answer questions about your living situation, but a judge may need the information to decide which home is best suited for child custody. Just because the answer could be unsettling or be used against you does not mean it is not relevant to the case.

Child custody is often the most difficult and emotionally taxing part of a separation. While you and your spouse have decided that a divorce is the best option for both of you, nothing will ever separate you from your children—but unfortunately, your spouse seems to share that opinion. Your ex may even have threatened to play up the negative aspects of your potential custody—long hours at work, an uncertain living situation, an unstable career choice. Unfortunately, these “playing dirty” tactics can have lifelong consequences for you and your children, and retaliating can make matters even worse.

What Should I Consider Before I Attend My Divorce Deposition?

You and your spouse may have attempted to work out a custody deal on your own, but weren’t able to reach an agreement. These arguments can turn bitter, even hostile, to the end that nobody is happy with the outcome—least of all, your children. Before you enter your child custody deposition, consider what “winning” may mean:

• To you. You must look past your own needs when deciding custody. If you want your children to live with you merely because you want to make your ex unhappy, don’t do it. If you want partial custody, but cannot realistically make time for your children, reconsider. Evaluate not just what you want, but why you want it.
• To your children. Your children will likely be torn in different directions during a custody battle, so you should make the transition as easy as possible. You and your spouse will have to get along after the divorce, at least at a cordial level, in order to ease the stress on your kids. Avoid making comments about your ex in their presence, and let them know that you will always be available to them, no matter with whom they live.
• To your spouse. Children are a lifelong commitment, and like it or not, your spouse shares half of that commitment. You will have to see, call, visit, and endure your ex-spouse as long as your children are living, so avoid burning your bridges. A little courtesy can go a long way.
• To your partner. If you have entered into a serious relationship with a new partner, you should have an open and honest conversation about children before agreeing to a custody arrangement.
• To the family. The people involved in this separation are your family. You need to come out with workable arrangement that holds up for the foreseeable future, with room for improvement if your situations change. If it is in some way beneficial to everyone, you have “won.”

You may have learned the old Boy Scouts maxim: Be Prepared. It’s helped you a lot throughout your life, and while your attorney does a fine job of protecting your interests, you figured it couldn’t hurt to give him a hand by backing up all of your arguments with paperwork. After all, this is a great way to show opposing counsel that your case is airtight.

Sometimes, Too Many Documents May Actually Hurt Your Deposition

Or so you thought. What you may not know is that bringing too many documents to a deposition can actually be detrimental to your case. Here are a few examples of common types of documents, and how they can play out in the course of your deposition:

• Documents to be produced. These are any documents that you have been instructed by your attorney to bring with you. You should always bring three copies of each document: one copy for opposing counsel, one for your attorney, and the last for your reference. You should also bring the original document in case the copy is of poor quality or the accuracy of the document is called into question.
• Unauthorized documents. You should not bring any notes, diaries, or other records to help you state your case during a deposition unless they have been thoroughly reviewed by your attorney. This is because any document you produce may be examined by the opposing counsel, and can potentially be used against you. For example, if you use your personal schedule as evidence that an accident occurred on a specific date, opposing counsel may note that you attended a meeting in D.C. days later, calling the severity of your injury into question.
• Documents not produced. If an attorney asks you to confirm something based on evidence, you should ask him to produce the document for confirmation. Do not offer to supply the information yourself; you should not even produce your driver’s license, ID, or other personal items without your attorney’s consent. If you are asked to respond to the information presented in a document, examine it carefully. If you have never seen the document before, do not vouch for the accuracy of the information listed. If you don’t understand what it says, don’t try to guess at its meaning.

Was your case derailed by a paperwork error or by misinterpretation of the evidence?