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• Never take a deposition lightly. Budget sufficient time to more than adequately prepare.
• Never practice deposition questions, or otherwise prepare for your deposition, with your spouse. The level of stress to a relationship resulting from a malpractice lawsuit need not be further escalated by actively involving the spouse.
• Never underestimate the plaintiff’s attorney and fail to diligently prepare for your deposition. Remember that, at a deposition, you are facing a formidable enemy on a foreign battlefield.
• Do not discuss your case with anyone other than your attorney. You might have discussed the medical aspects of the case with your department head, another practitioner, or the committee at the hospital with peer review responsibilities. Such discussions are generally privileged under state law. Do not, however, discuss procedural and tactical issues with anyone other than your attorney.
• Beware of all attorneys other than your personal attorney. Granted, "your" attorney is really, in most cases, the insurance company’s attorney. If you have concerns about this, discuss them with the attorney supplied to you and ask for an explanation of his or her obligations to you vs. the insurance company. In rare instances (e.g., a verdict in excess of your policy limits is likely), you will need to retain independent counsel.
• Never consider your case to be a "slam-dunk" winner. It might be, but do not plan on it. "Slam-dunks" are rare.
• Listen to your attorney carefully, both before and during your deposition.
• Tell your attorney everything. To have a chance of protecting you, your attorney must know all the facts, no matter how embarrassing they might be.
• Always get your answer right the first time. Take your time and answer all questions correctly. Pauses before answering (unless extraordinary long and commented on by opposing counsel) are not reflected in the deposition transcript.
• Always tell the truth. How much information must be disclosed to be "the truth" should be discussed with your attorney.
• Use "yes" and "no" frequently as answers.
• Always qualify your answers when "yes" or "no" would be overly broad.
• Never get comfortable during a deposition. Comfort leads to carelessness, which leads to disaster.
• Never ignore your attorney’s objections. He or she often is talking to you.
• Never assume.
• Be extremely cautious if asked to agree with the plaintiff’s attorney. It is seldom a good idea.
• Never agree that a textbook or journal is "authoritative."’
• Never answer a question that is ambiguous or compound.
• Do not be afraid to say "I don’t know" when that is the truthful answer.
• Keep your cool; don’t argue with opposing counsel. Leave the arguing to your attorney.
Source: Freedman DL. Depositions: You must prepare if you hope to survive. ED Legal Letter 2001; 12:35. Published by American Health Consultants. Telephone: (800) 688-2421. Web: www.ahcpub.com.