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Depositions:
Tips and traps

Thomas G. Gutheil, M.D.

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• DEPOSITION AND DISCOVERY

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Interrogatories

• Prepared under oath
• Written and submitted
• Prepared by attorney
• You must review - forecast of your testimony

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Definition?

• "A deposition is an oral examination under oath, in the discovery phase of a case, and usually involving a witness, a court reporter and the attorneys in the case."

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Definition!

• A deposition is the written transcript of the oral deposition, which is retained on mainframe computers in perpetuity and will appear at later times to impeach you.

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Audience

• The audience for a trial is the fact finder
• The audience for a deposition is the stenographer

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Attorney's goal in deposition

• Get your opinion
• Obtain admissions/concessions
• Paint you into a corner
• See you in action
• Your goals: "poker" or "crusher"? - attorney's call

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Deposition sites: pros and cons

• Your office (exposes your library)
• Their office
• Someone else's office (e.g., local attorney)
• Stenographer's firm's office

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Common deposition errors I

• Thinking a deposition not like a trial
  • Oath still applies - risk of perjury
  • Role in impeachment
  • Need to prepare
  • Still need to know the case cold

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Video depositions

• The exception: it is like trial
• For video deposition, the camera is the audience (jury, judge)
• Continuous filming: no relaxation
• Beware the shifty-eyed look

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Opposing attorney tactics

• 1. "Let's have a conversation"
• 2. Scramble the order
• 3. Keep up the speed and rhythm
• 4. "End run" around objections

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In deposition:

• Be prepared, be aware
• Be an "active listener": where is this going?
• Don't be shy about taking time
• Ask to be shown alleged documents and take time to read them

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In deposition II

• Take frequent breaks when concentration starts to fade
• Watch out for dissociation
• If you are not tired and drained at the end, you have not been paying sufficiently close attention

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Deposition language

• Rule of austerity: just what is needed to answer the question
• The question embedded in the answer to prevent misquotation

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Deposition example

• Q: Now when I had asked you questions on direct examination if there was corroboration of the [behavior], you said there was, correct?
• A: Yes.
• Q: All right. And then you had a conference with [your attorney] during the break and you said there wasn't, right?
• A: Yes.

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Deposition example

• Q: Was that explanation amplified in any way with any details as to what that sexual abuse was supposedly to consist of during that conversation?

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Deposition example

• Q: ...it was the expectation that staff would be watching the hall 100% of the time to make sure that one patient didn't leave their room and go to another patient's room at night -
• A: Correct
• Q: --that correct?
• A: Correct.

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Deposition example

• Q: When did you tell the attorney he had been fired?
• A: I told the attorney he had been fired on the 21st.

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Deposition example

"There's clearly times after his death where he's saying things to his wife that sound like either his suicidality has returned or his suicidality, that never went away."

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Always read an sign

• Q: So you have been unable to locate some of your records on [patient]?
• A: I never tried to be honest with you. I was never told to try. I never had any reason to try.

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Why read and sign

• Testified:
  • "It's an us and them situation."
• Transcribed:
  • "It's an S & M situation."

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Deposition answers

• A shallow pool :
• "Yes"
• "No"
• "I don't know"
• "I don't recall"
• Short narrative with question in the answer

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Saving stenographer sanity

• Speak out load - no noises or gestures
• Speak in turn - no overlap
• Speak slower than usual
• Spell odd words and names
• Don't discuss case with stenographer

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• BE YOURSELF
• Unless you're a jerk

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Thank you

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