Practice Areas

The Defendant-Doctor’s Deposition

By Ronald A. Margolis, Esq.

Those of us who have practiced in the medical malpractice trial arena know the importance of the defendant-doctor's deposition. Some of the colloquial expressions that come to mind are:

  1. You do not win a case at deposition, but you can sure lose it.
  2. You never have a second chance to make a good first impression.
  3. There is no such thing as a bad witness; just a witness who was not prepared.
  4. The defendant's most important involvement in the case is his/her deposition.

The list is endless. We understand that our client's deposition is the keystone to our case. Being mindful of this, we should make certain before our client is deposed that we have accomplished the following:

  1. A comprehensive review of applicable medical literature;
  2. Discussions with experts to develop our case theories;
  3. A comprehensive review of our clients litigation history;
  4. Develop rapport with our client;
  5. Thorough explanation of the process;
  6. Mock depositions;
  7. Development of core case issues; and
  8. A comprehensive review of medical records with client.

Certainly our client's substantive knowledge of the medical issues is not the issue, but understanding the overall process, the do's and don'ts, is absolutely essential. Too many times an off-the-cuff cavalier comment innocently made can become the focal point of our opponents case. It has been said, to avoid stepping in a hole you must first be aware of its presence. Fundamentally, it is the attorney's job to provide a road map of the potential holes so the defendant-doctor is aware of their presence and able to avoid them.

Last, but by no means least, is the necessity of having a working understanding of both the plaintiff's theories of liability, as well the defense theories per expert review, so that the defendant-doctor can be made aware of these theories and their testimony is supported.

In conclusion, as frustrating, difficult and anxiety provoking as the litigation process is to a practicing physician, he/she must be made to understand the importance of a deposition. The defendant-doctor is indeed out of their element when it comes to depositions, and the doctor requires the attorney's expertise to assure that this very important aspect of the litigation furthers his/her defense.