Key Factors in a Deposition: What Healthcare Professionals Can Expect

A deposition is a powerful discovery tool used in virtually all forms of civil, administrative, and criminal litigation. It provides an opportunity for the defense and prosecution to identify information that is material to a claim, assist in developing strategies for trial, and formally preserve testimony for use at a later time.

Depositions are conducted under oath in a verbal question-and-answer format by counsel for each party to the proceeding. Although the deponent (that is, the person being questioned) is often a participant in the legal action, the individual is more commonly an independent person who has specific—and possibly unique—knowledge relevant to the case.

The questioning may require several sessions conducted over many days or even months. Depositions are always recorded, traditionally by a certified shorthand reporter who then transcribes the exchanges into a verbatim document that the deponent is required to review, correct as necessary, and sign. With increasing regularity over the past two decades, the testimony is now also preserved by separate audio and video technologies, and artificial intelligence may be used to summarize and analyze the information.

Most deponents, whether a party to the proceeding or a witness, are represented by an attorney. Legal counsel can protect the interests of the client-deponent. In preparation for a deposition, counsel will generally meet with the individual well in advance to explain the process; offer recommendations on demeanor, dress, and other important considerations; provide valuable suggestions on pitfalls to avoid; and identify probable areas of questioning by the attorneys who will attend the deposition.

Key Factors for Deponents

Contact The Doctors Company immediately for further assistance if you receive a subpoena or other notice of a deposition. Responses are time sensitive, and deponents must keep several key factors in mind.

Prepare in advance. The deponent must be prepared well before the proceeding about the likely scope of the examination and carefully review materials that counsel provides. Advance preparation helps to expedite the process and better ensure the accuracy of the testimony. Opposing counsel is entitled to review any documents that the deponent has examined and to know the names of any individuals the deponent has spoken with about the case. Discussions between the client and attorney are private, confidential, and protected from disclosure by the attorney-client privilege as a matter of law.

Tell the truth. The oath given at the outset of the proceeding is critically important. Although the swearing-in process varies by jurisdiction, all deponents must promise to “tell the truth, the whole truth, and nothing but the truth.” Failure to comply with the oath reasonably and in good faith when responding to questioning may be considered perjury that is punishable (often as a felony) by the jurisdiction’s prosecuting authorities and may result in fines, sanctions, and even imprisonment. A deponent who is caught in a lie will be cross-examined even more rigorously, and the court, arbitrator, or other administrative commissioner will likely allow greater latitude in the interrogation’s scope, tone, and severity. The oath requires that responses are truthful, accurate, and complete. Embellishments, intentional omissions, and shading the truth are prohibited.

Answer the question asked. Deponents should listen carefully, answer only the question being asked, and then stop talking. Volunteering extraneous information prolongs the proceeding, identifies potential new areas of inquiry that opposing counsel may not have previously considered, and occasionally subjects the deponent to objections by any or all counsel, with corresponding motions to strike the unnecessary portion of the response. One classic tactic is for the attorney to pause, leaving dead air that tends to be uncomfortable and can lead the deponent to resume talking unnecessarily. This opens the possibility of revealing detrimental information not specifically sought by the original inquiry.

Consider yes and no responses. Deponents need to be careful of questions that apparently call for only a “yes” or “no” answer. This is a strategy frequently used by counsel to box the deponent into a simple and potentially damning response or admission against interest. If the question can be truthfully and fully answered with either a yes or no, respond and wait for the next question. If more information is necessary to be accurate, the deponent should state this on the record and wait for the attorneys to offer their opinions in response. The deponent will be given direction on how to proceed.

Provide accurate information. Witnesses should do their best to provide the most accurate testimony at the time of the deposition. Although a transcript can be changed prior to the deponent’s final signature, corrections tend to lessen the individual’s credibility. If the matter proceeds, a heavily corrected transcript can increase the probability that the deponent will be questioned even more vigorously during any subsequent appearance.

Maintain respect. When providing deposition testimony, be well prepared in advance, appear on time and appropriately attired, act professionally and courteously at all times, stay focused, and respond to the questions directly and with respect. Defer and stop talking when counsel interrupt the proceedings with objections, motions, argument, or requests for clarification.

Additional Assistance

For more information on the litigation process in general, see “Coping With Litigation: Tips for Healthcare Professionals.”

If you are served with notice of a deposition, contact The Doctors Company immediately and our experts will guide you. Contact a claim specialist or patient safety risk manager on our 24-hour hotline at (800) 421-2368, or contact the Claim Administrative Support Team or a patient safety risk manager by email.