Handling hostile lawyers during depositions
Don't let tension impact your statements
Staci Kusterbeck, Contributing Editor
When being verbally confronted during a deposition, you may be tempted to blurt out a statement you may later regret. "Do not let the opposing attorney get you rattled by intimidation. Usually they are trying to get the witness to lose their cool," says Kathryn Eberhart, BSN, RN, CEN, a Santa Rosa, CA-based legal nurse consultant and ED nurse at Santa Rosa Memorial Hospital.
If an attorney goes into "attack mode," recognize what he or she is doing and don't let it get to you, says Jonathan D. Lawrence, MD, JD, FACEP, an ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA.
"This just frustrates the bully even more. Take a deep breath and wait before blurting out a possibly unwise spontaneous response," he says.
Here are tips for depositions:
- Don't answer questions you don't understand.
"If you are asked a question that you do not understand, say so," says Eberhart. "If you don't have a memory of an incident, say "I don't recall."
- Take action if the lawyer is hostile.
If the attorney representing you is doing his/her job, the opposing attorney won't be able to get away with harassing and overtly hostile behavior, adds Lawrence. Repeated warnings to "tone things down" that go unheeded will cause your attorney to threaten to terminate the deposition and go to a judge to impose sanctions.
"Remember your attorney is there to prevent his or her client from being subjected to harassing or overly hostile questioning. If your attorney is not doing their job, ask for a break, step out of the room, have a conference and express your concerns," says Lawrence.
- Correct yourself right away.
If you say something you regret, such as an outburst made in frustration, you can make a correction on the record, or you can change the transcript at a later date when you review it. "Both of these methods can be commented upon by opposing counsel at time of trial if they so desire. So the best policy is to think out all your answers and not be forced into making corrections," says Lawrence.
It is more damaging to the case to correct a statement after the deposition is over, says Eberhart. "If you realize that what you said may have been misconstrued, just tell the attorney you want to clarify a statement you made that may be confusing or not correct. It is better if you do this while you are still in the deposition," she says.
- Ask for a break.
There may be state specific rules, but on a general basis, the opposing attorney can't refuse you a break, says Eberhart. "You can always say 'I need to use the restroom,' or 'I'm tired, I need a break,'" she says.
- Answer the questions.
Don't answer a question unless it's asked, and never give more information than asked for, says Eberhart. However, it won't help your case if you are evasive and fail to answer the question being asked. "That type of deposition may raise suspicion and make the other side dig further," she says.
For instance, there have been several cases where an emergency nurse continues to say 'I don't know,' even when asked questions about policies and procedures and his/her own state nurse practice act. "The nurse should know the policies and procedures of the ED they work in, and when asked if they have seen a specific policy they should be answering yes," says Eberhart. "However, if they don't remember one, that's a valid response."
It can also appear that the nurse is "not the sharpest tool in the shed" when asked specific questions about his/her practice area, says Eberhart. "I've seen this in multiple different depositions," she says. "If you don't remember, you don't remember. However, the nurse should remember what they do clinically and they can say 'I don't remember, but my usual standard of practice is X,Y, and Z.'"
Not all legitimate questions are "soft balls," warns Lawrence. "Questions may be difficult to answer and may make you sweat," he says. A pointed question would be: "Dr. X, did you consider the possibility of child abuse when you discovered the skull fracture?" But this could also be framed as "Dr. X, wouldn't any reasonable physician have considered child abuse upon discovering the skull fracture?"
"The defense attorney should object to this question on any or all of the grounds that it is overbroad, argumentative, or calling for expert opinion—and not allow the doctor to answer," says Lawrence.
Although you may be tempted to confront a hostile attorney by stating "You seem angry," the smartest response is to remain calm and answer the questions, says Eberhart. "The attorney on the opposing side will attempt to use whatever they can, to get you to answer a question the way they want you to," she says.
This is why it's better to resist the urge to verbally "spar" with attorneys or ask them why they are so angry, adds Lawrence. "Far from jousting with the hostile plaintiff attorney, the physician should not react emotionally at all. Often the histrionics are designed to see what pushes the physician's buttons," he says.