Depositions
Whether on a site such as MDConsult, medline, or even google or
amazon.com, once in a while you can turn up gems of background information. Our firm once had a case in which emergency room discharge instructions played a key role. We discovered that the defendant had authored a text book on emergency medicine. In that text book was a chapter on discharge instructions in which the doctor specifically decried the very practice that was at issue in our case. Tis provided powerful examination material both at deposition and trial. An inquiry should be made if your defendant has ever
acted as an expert witness. Tis is unlikely, but it is worth a check on TrialSmith, just in case your defendant has testified as an expert in the past. One never knows unless one checks. If you have not already done so, construct a detailed
chronology of the medical care at issue in your case in preparing to take the defendant’s deposition. Tis serves two purposes. First, it forces you to learn the record. Second, even if you have a paralegal or legal nurse consultant produce the chronology, it condenses the record for future use. Tis is vital because you must know the record as well as, or better than, the defendant before you take his deposition.
Some defendants seem to immerse themselves in their case, themselves learning the records thoroughly, while others act as though they would rather not be bothered. Either way, you need to be able to immediately navigate the record in order to effectively conduct the deposition. You need to carefully think through your approach to
the defendant’s deposition. What are the major points you need to establish to prove your case? How do you lay the foundation for those points in your questioning in such a way that they are inescapable? I find that outlining my questions in advance helps me to keep on point during deposition and allows me to refocus if the questioning leads off to a tangential or out of sequence issue. We know that lawyers fall into the habit of beginning every deposition with the witnesses’ qualifications and background. A different approach is to go straight to the medicine or facts of the case at the beginning of questioning. Tis approach often will keep the witness from establishing a comfort zone with otherwise easy background and qualification questions. In your questioning, establish medical concepts broadly,
but focus narrowly when establishing the facts of the case. Te defendant should be forced to go through his care in focused
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