Friday, July 08, 2005

A brief legal post (maybe not so brief)

Now, I don't pretend to know as much as an attorney about legal issues, but I have been involved in enough depositions to feel like I can offer a few ideas and thoughts. Of course, I would appreciate any comments from those out there with additional knowledge.

As a doctor who reviews medical records for an insurance company, I know that I have the potential for being deposed on just about any file I review. Claims that are governed by ERISA law are, technically, to be adjudicated solely on the administrative record, the claim file, and the law does not provide for depositions, but I have been deposed on ERISA claims. Go figure.

I have been deposed as an expert witness, a fact witness and as party to the lawsuit. I have testified as a witness to a crime.

I have been very fortunate that the company for which I work has provided training in legal writing and deposition/trial testimony skill. In addition, attorneys with whom I have worked have been very good about depo prep.

Unfortunately for the witnesses for other side, in the cases in which I have been involved, the opposing attorney is usually very bad about depo prep. If you are sued or are acting as an expert, demand adequate depo prep.

In one of the first malpractice suits with which I was involved, the expert for the plaintif was an ER doc. I was working with the defense attorney and attended the doctor's deposition to help the attorney with the medical issues. The ER doc had never met the plaintiff's attorney before his deposition, but had just talked to him on the phone to schedule the deposition. They took him aside for about 15 minutes before the deposition. They allowed the deposition to be scheduled after a night shift in the ER, on a day that he had to come back that night for another night shift. The attorney with whom I was working knew this and deliberately prolonged the depo. Imagine, after a night shift in a busy ER, and anticipating another busy night shift, what would be on your mind? Going home and getting some sleep, perhaps?

Anyway, the defense attorney stretched out the preliminaries as long as practical and took numerous breaks. After about 4 hours, she got to the meat of the case and the ER doc was wiped out. He made such a mess of his testimony that the plaintiff's attorney didn't allow him to testify at trial. There was no way to resuscitate him. Now, if he had been properly prepped and the depo had been properly scheduled, this could have been avoided, to some extent.

When I refer to "your attorney" I mean the attorney for the side for which you are testifying. If you aren't the plaintiff or the defendant, you should have a stake in the truth, not in the use of your testimony.

So, after this example, here are some tips:

  • Be well rested. A no-brainer, I know, but read the above example, a true story, again.

  • Dress comfortably. If you are going to be videotaped, you should wear a coat and tie or, for women, similar professional garb. Don't wear your white coat, or at least ask your attorney her preference. Juries can perceive the white coat as arrogant. Don't primp with your hair, mustache or clothes during the deposition.

  • Feel free to take breaks. Don't let the opposing attorney set the tempo. If you want a break, tell them that you are taking one. To be polite, you might ask if anyone objects, but take it anyway. The more the opposing attorney objects, the more important the break is.

  • If there is no video, you can take all the time you want to think and answer a question. Pauses don't get transcribed. However, you don't want to look unsure on the video. Try not to overthink and take long pauses if on video.

  • However, don't rush to answer. Let the questioner finish the question and look for modifiers, like on test questions, that might change your answer from a yes to a no. Additionally, a brief pause between the question and the answer will give your attorney a chance to object, if necessary. Most of the time you will have to answer the question anyway, but at least the objection is on the record.

  • Listen to anything your attorney says. Especially the objections. If your attorney say, "Objection, calls for speculation," your answer should be, "I'm sorry, I don't feel comfortable speculating about this subject." The wording of the objection can clue you in to traps in the question, such as an objection to a multipart question. You might say, "Could you break that question down into single parts, so that I can make sure my testimony clearly addresses them and there is no confusion?" If your attorney asks you, "Do you need a break?" you can bet that you do.

  • Look primarily at the deposing attorney, but you shouldn't stare or be fixed. Don't fidget, but look at the other participants occasionally. Be careful, but casual.

  • When asked a question about a document, look at it. Every time. Every time. Every time. Don't trust your memory or the opposing attorney. Make sure you are absolutely positive about the document before you answer. Just say, "May I see that, please?"

  • Don't be emotional. If you feel yourself getting defensive or angry, ask for a break. Remember, these snakes people are experts at this. They will try to get you upset and make you lose your cool.
More here.