Giving a Deposition

Points to consider if you are ever brought into court

By Paul J. Welk, JD, PT

THE BASICS

Let’s start with the basic premise that no one likes finding out that you are scheduled for a deposition (unless maybe if you are a highly compensated expert witness). Depositions can be seen as an intrusive hassle that take up valuable time that is better spent elsewhere. That said, if you have the right mindset and prepare yourself, you can likely make the whole process a lot less painful. This article provides some tips and general advice to help prepare you for your deposition, which may be required in a variety of contexts including cases related to medical malpractice, personal injury, and workers compensation.

Initially, it is important to understand that your testimony is often inevitable and the decision on whether your deposition must go forward is ultimately not yours to make. In most cases, a deponent (the person testifying in the deposition) is not able to provide a recorded statement, affidavit, or other document to “get out of a deposition.” This is due to the fact that these alternatives generally cannot satisfy an attorney’s need to verify information on a specific topic or gather sufficient information in order to better understand critical facts and best prepare for a potential trial.

You may find it surprising that depositions can be required even if you are not a party (litigant) to a matter. For example, if you treated a patient who filed a medical malpractice claim against the referring orthopedic surgeon you may be required to give a deposition in connection with the case. Should you initially refuse to appear for the deposition, you may force the attorney seeking your deposition to issue a subpoena, in which case you will generally forfeit control of where and when your deposition takes place. By contrast, in most cases if you cooperate in scheduling your deposition, attorneys will make accommodations to fit your schedule. In today’s legal world, in a trend accelerated by COVID-19, videoconference depositions have become commonplace which makes the scheduling process easier to manage. That said, if you are scheduled to give a deposition in a matter that is document-intensive or requires review and reference to photos or video you may have to physically appear in order to facilitate an effective deposition.

THE PROCESS, DOS AND DON’TS

As to the deposition itself, your testimony is sworn under oath and transcribed into what will become evidence to be presented at trial should the matter proceed to that point. While it may seem obvious, in a deposition you must always tell the truth. Attorneys who cross-examine witnesses are trained to identify false statements or half-truths and often have extensive background information that will ultimately reveal the facts as they are, regardless of whether a deponent attempts to avoid certain topics. Your testimony serves as your affirmative and truthful statements on whatever subject the attorney wishes to explore within the general parameters of the issues pertaining to the case.

While you may not control whether you are subject to a deposition, your testimony is one thing you do control. Be mindful of what you are being asked and be sure you completely understand the question before answering. You should not hesitate to ask for a clearer question if you do not fully understand what is being asked. When giving your deposition, don’t be nervous, feel compelled to please the attorney who is asking questions, or “speed through” topics in an effort to finish your deposition faster. You should speak confidently and whenever possible keep emotion out of your thought process or statements. You should avoid sarcasm or jokes because the written transcript of your testimony cannot reflect the tone of how you are speaking.

Keep in mind that the attorney is questioning you because they genuinely may not know or understand critical facts or because they need to verify certain facts that they believe to be true based on their own investigation. The attorney may also be seeking to confirm, or refute, what they have already learned from their client or other witnesses. For this reason, be careful about answering questions based on what other witnesses may have said or done and do not speculate, guess or make assumptions.

In most states deponents have a right to review and revise the transcript of deposition testimony. Once a deposition is completed, and the stenographer has drafted the transcript of the proceeding, the attorneys will receive copies of the transcribed record. This transcribed record is subject to final review/approval by the deponent, which generally includes the option of making changes to identified errors. You should take the time to review your deposition transcript and discuss any issues with your counsel.

THE ROLE OF COUNSEL

Remember that your attorney is there to help you and, in some cases, will be provided (and paid for) through insurance that you or your practice have in place. In addition to explaining all of the above in their own words, during your actual deposition you should rely on your attorney for counsel. Your attorney’s ability to control what sort of questions are asked is limited, but they can take some control of making sure the record in preserved with proper objections and can direct you not to answer in some circumstances. When attorneys are present, objections are inevitable. Attorneys can object to the manner in which a question is asked or on the basis that the question calls for an answer that would violate the rules of evidence in a courtroom setting. During your deposition, you should not be concerned with the rules of evidence, or whether your answer will ultimately be permitted to become evidence at a future trial or hearing. If you have an attorney present with you, it is helpful pause for a moment after a question is posed to allow your attorney to state an objection if appropriate.

If your opinion of giving a deposition is the same as most physical therapists (i.e., “I really don’t like this”), hopefully you do not find yourself in the role of deponent too frequently in your career. To the extent that you are required to give a deposition, you should consult with your counsel regarding the process and consider the concepts covered in this article with the ultimate goal of looking like a pro in the process. 

Paul J. Welk, PT, JD, is an APTA Private Practice member and an attorney with Tucker Arensberg, P.C., where he frequently advises physical therapy private practices in the areas of corporate and healthcare law. Questions and comments can be directed to pwelk@tuckerlaw.com or (412) 594-5536.