What's A Deposition and How Do I Handle It?

You're sure that you have a legitimate medical malpractice claim, and your attorney has found experts who support you after reading your medical records. Now somebody wants to take your deposition, which is something you've never done. What's going to happen and how do you prepare for it?

A deposition begins with you and your attorney meeting the opposite side's attorney(s). Everybody is pretty cordial, and the attorneys may be on good terms from working on the same cases in the past. They talk about golf and home improvement for a while, then the court reporter swears you in. Now, the real business begins.

The opposing attorney who seemed so nice a few minutes ago may start with "softball" questions about your involvement in the case and how much you saw of the actual care given to you or your family member. Your attorney has told you to stay calm and factual—a hard job when something tragic or just as painful has happened and you're mad about it as well. 

If a question pushes your buttons, stop and take a deep breath or several. You do not have to respond right away, but you have to acknowledge that the subject is an upsetting one. Answer as you would want a jury to see you answer; after all, this case could still go to trial. If you appear to be the kind of witness a jury would view with sympathy, that will give the defense some motivation to settle out of court.

In fact, all of your answers should be made with an imaginary jury in mind. I find it helpful to think of the attorney questioning you as an actor in a movie: he doesn't really mean those comments you find irritating or unkind; he's just playing a part. Concentrate on playing yours well.

A common trick is for the attorney examining you to pause after you answer something. You think that you must not have answered clearly enough or want to add something, and may go on to say something that contradicts or weakens what you already said. Do not fall for this: when you've answered the question, you've answered it and that opposing lawyer does not deserve anything more.

You can ask for a break at any time. If the questions are taking a direction that makes you uncomfortable or if you think you're not being given a chance to express your side of things, talk to your attorney, who can probably reassure you.

After the opposing counsel is finished with his or her questions—it will probably take an hour, or longer if you're dealing with defense attorneys from more than one doctor or the hospital itself—you will get questions from your own attorney, most of which will be a welcome chance to tell your side of things. Another couple of questions from one or both attorneys and you'll be finished. Afterward your attorney will review things with you and remind you that you can read and sign the transcript if you want, and then you can go home.

Yes, this is stressful—I've been deposed more than 20 times, and I was not personally involved in the events. You will undoubtedly go over it in your mind, thinking about things you could or should have said. But now is the time to relax, be grateful for your own attorney, and try to think of other things for a while.

Lawsuits move extremely slowly. Sometimes this is good, because this gives you time to recover and plan ahead. Try to think logically as often as possible and you will do fine.