Before Deposition

• Talk to peers and friends. Seek support. It’s helpful to talk to someone who has been through it. Self-care is a priority.
• Read a book on malpractice litigation; most have advice on deposition preparation.
• Know the details of your chart well, including all nursing, staff, and EMS notes. You will be given a copy at deposition to reference, but you should already know the details. Anticipate how you will answer tough questions about what was documented.
• Practice answering questions truthfully and succinctly with your attorney, without offering extra information. Speak in specific medical terms; do not try to “teach” the opposing counsel. Do not be demeaning.
• Discuss with your attorney whether to do any research on the relevant medical issues, and keep all research as an “attorney-client work product.”
• Discuss how you will handle questions about co-defendants in advance. In general, deposition is not the time for finger-pointing. Do not access or review their records, or you may be deposed about them; review only what your attorney provides you (in which case, you may keep it confidential within attorney-client privilege).

During Deposition

• Pay attention to your attorney. They may object to certain questions and may also give you nonverbal clues when they sense a trap. Physicians have even described their attorneys stepping on their toes under the table!
• Pause and reflect before answering. This helps you focus and gives your attorney an opportunity to object if necessary. Only answer once the question is complete and you know exactly what is being asked; ask for clarification if needed. Some examples:
  • If the attorney asks you run-on questions, ask for them to be broken down. 
  • If the attorney lists data before the question, ask to see the data to confirm it and then clarify the question. Stop looking at the data before you begin to answer.
  • Be wary of hypothetical or vague questions—they want you to generalize yourself into a corner. 
  • Beware the double-negative question—ask the attorney to rephrase until it’s clear, or answer in a full sentence that says exactly what you mean. 
• Saying you “don’t know” or “don’t remember” is preferable to vague recollections.
• Do not agree to calling any text or journal article “authoritative.”
• Take breaks when you need them. It’s usually a long day.
• When the deposition ends, do not talk about it with your attorney until you are well away from the building. 

Dr. Pensa is clinical associate professor of emergency medicine at the Warren Alpert School of Medicine of Brown University in Providence, Rhode Island; associate director (education) of the Emergency Digital Health Innovation program at Brown; and creator and host of the podcast “Doctors and Litigation: The L Word.”