Medical experts play a crucial role in medical malpractice and other injury cases, and one of the most critical steps is the expert’s deposition. An effective deposition can put pressure on the other side to settle your case on favorable terms or put you in a strong position to win at trial. Conversely, a bad deposition can embolden the other side and weaken your case as you approach trial.
That’s why it’s important for both attorneys and expert witnesses to be prepared for depositions. And it’s why you need the right expert who is prepared to offer compelling testimony in their deposition and, if necessary, at trial.
The basics of expert witness depositions
A deposition is sworn testimony given outside a courtroom during the discovery process. Of course, the specifics of depositions vary from jurisdiction to jurisdiction. In general, though, those present for the deposition will be the witness, the attorneys for all parties, and a court reporter or other person qualified to administer oaths. One or more of the parties themselves may attend the deposition as well, but it’s not required (unless the party’s own deposition is being taken).
All of the attorneys present can ask questions, including not only opposing counsel, but also the attorney who hired the expert witness and any attorneys for other parties who are present. However, opposing counsel usually asks the lion’s share of the questions.
Attorneys can object to questions during depositions, but ordinarily, the witness must still answer, unless the answer is protected by privilege.
What to expect during your expert’s deposition
- Rapport-building: Effective attorneys usually try to build some degree of rapport with the witness before diving into more substantive (and potentially damaging) questions. It’s important for the witness not to get carried away; the other side’s attorney may be friendly, but they’re not your friend.
- Probing questions: The biggest advantage of a deposition is the ability to ask follow-up questions to clarify or seek additional information. Most attorneys will take full advantage of this opportunity.
- Locking in the witness: While deposition testimony is not usually admissible at trial, it can be used as a prior inconsistent statement to impeach the witness and cast doubt on their credibility. That’s why attorneys will try to “lock in” the witness to testimony that they can’t easily contradict later.
- Exploring legal arguments: In medical malpractice cases, expert witness depositions can give the other side a sense of your theory of the case and the types of medical arguments you are likely to make at trial.
- Assessing witness credibility: The purpose of a deposition is not just to get information about the substance of the case, but also to assess how credibly and effectively the witness will be able to testify at trial.
Preparing for your expert’s deposition
It’s crucial to meet with your medical expert prior to their deposition and ensure they are prepared. Remind your expert witness to:
- Tell the truth: A deposition is under oath, and lying is punishable as perjury.
- Don’t guess or speculate: If the expert truly does not know the answer, “I don’t know” is an acceptable response.
- Don’t volunteer information: Answer the question asked, and only the question asked. Volunteering extra information not only prolongs the deposition but also identifies potential new avenues of questioning that the other side can exploit.
- Think carefully about “yes” or “no” answers: If a question can be answered fully and truthfully with a “yes” or “no,” then say it and stop talking. However, if the question has more nuance, then give a nuanced answer (without going outside the scope of the question).
- Be respectful: Showing respect to opposing counsel will likely give them a positive impression of credibility.
- Take breaks when needed: Remember, you generally can’t take a break while a question is pending, so try to anticipate tough lines of questioning and take time to regroup beforehand.
Contact us today to find your expert
Given the critical importance of expert depositions, it’s important to find a highly qualified medical expert witness with experience testifying in depositions and, if necessary, at trial. For 40 years, Rieback Medical-Legal Consultants has been providing the best in medicine to assist the legal community.
Our network includes physicians and nurses in all medical specialties prepared to provide effective, credible deposition testimony. Give us a call or contact us online to find your expert.
"Ms. Rieback consistently locates well-qualified medical experts that permit me to make early and accurate case evaluations and assist us in tipping the scales of justice in our client's favor. The professionals that she recommends to us are consistently highly experienced, meticulous in their case preparation and analysis, and superb witnesses at both deposition and trial." — Alan F. Wagner, Wagner, Vaughan & McLaughlin, ⭐⭐⭐⭐⭐