Legal Update: You’ve Been Deposed. Now What?

These do’s and don’ts can keep you out of trouble.

Everyone hopes to never be part of a lawsuit and all the stress and aggravation that accompanies it. Crossing your fingers that the day never comes, however, is not a strategy. In the event you are ever deposed, it’s crucial to know how to handle it.

Depositions make for difficult days, but a little forethought can help you successfully get through one.

Be prepared

Usually, your employer will pay for an attorney to help you prepare for your deposition. Review all the relevant documents in the clinical case file. If there are policies and standard operating procedures that pertain to the legal case, review those as well.

As you’re being questioned during a deposition, you’ll have the opportunity to quickly look over any document the other attorney is asking you about, but it’s best to have read it first. The last thing you want is for counsel to put a pertinent document in front of you that you’ve never seen before when you should have.

It’s also important to note that someone other than you should get those documents, particularly the records from the clinical case in question. Don’t go poking around in the chart trying to find documents to try to help the case. That’s the attorney’s job. Doing so could be a potential HIPAA violation if there was no reason for you to be in the records at that time. Also, you may not know whether attorneys on both sides have agreed that some documents are protected, so accessing them could be a violation of a court order.

Certainly, never go into the chart and correct anything you see that is incorrect. While it may seem innocent to fill a gap that you see, leave it alone. A spotty record is a spotty record. Let the attorneys from all sides work that out.

Play it straight

Sometimes people treat depositions as though they’re having a conversation with their next-door neighbor. While the opposing attorney asking you questions is sure to be impressed with your knowledge of the case when your replies go well beyond the scope of the question, don’t do that. Answer only the question that is asked.

If you’re asked if you know what time it is, say, “Yes.” Don’t say, “Yes. It’s 1:09 p.m.” Providing too much information is exactly what that attorney wants. It’s their responsibility to ask additional questions to get what they want. Don’t make it easy for them. Don’t even say that you could answer the question if you had access to the records on your desk. That could result in a recess and a request for you to get on your laptop and do exactly that. It’s also OK if you don’t know the answer to a question. Just say, “I don’t know.” Guessing or speculating could put your case in a bind if what you say winds up not being 100% true or isn’t provable. You won’t be crucified for not knowing the answers to some questions.

On the flip side, don’t be rude if you’re asked a question that you think is silly or that you don’t know the answer to. Just as the best answer is an honest answer, the best deposition subject is a polite one. You are within your rights to ask for questions to be repeated or clarified if you don’t fully understand what’s being asked. It’s OK to answer questions about your knowledge of a particular procedure, but remember to stay in your lane if asked about something that’s beyond your area of expertise. Simply tell them what you know based upon your role in the OR team.

Take a breath

Be aware that a legal stenographer is in the room. What they type will reflect the record of your take on the case. So don’t begin answering the attorney’s question before they finish asking it. In fact, wait a second or two before you begin your reply to give the stenographer a moment to catch up. The record will not be clear if one person is talking over another. This pause by you also gives your attorney the opportunity to object or ask for clarification if they feel it’s necessary.

When answering, think of the finalized report. Speak in clear, coherent sentences. Remember that a “Yes” or “No” is appropriate if that’s all the question requires. The stenographer can’t pick up on head shakes and head nods, and replies such as “Uh huh” can get lost in translation.

Don’t give sarcastic answers. It’s not the time to put on a comedy show. These kinds of answers often do not translate well to the transcript that decision-makers on the case will read to render their verdict.

Stick to your normal routine

On a more practical but particularly important note, don’t eat anything, drink anything or do anything that you wouldn’t do on a normal day that could disturb your state of mind or physical endurance. Depositions can sometimes last only an hour, but they could be seven or eight hours long.

The attorney for the other side could have a goal of dragging out the deposition simply to wear you out. Their hope would be that toward the end of the day, when you’re exhausted, they can expose potential contradictions in your statements, or irritate you in an effort to get you to say something that will look very bad in the written record. You need to have the wherewithal to sustain yourself throughout the entire deposition with a cool head. Don’t load up on caffeine before the deposition starts, because what goes up must go down. Don’t put yourself in a position where you’re going to be antsy at first and later become sluggish and lose your train of thought.

You can correct the record

If you feel you might have misspoken during your deposition, you’ll have the opportunity to correct the transcript before it’s finalized. Always say “Yes” when an attorney asks if you’d like a copy of the deposition transcript. Then review it for accuracy before it’s finalized. That document will be an important court document and perhaps your only opportunity to get your account of the situation on the record.

Finally, don’t discuss the case with friends or co-workers. Keep your deposition as confidential as possible. Oversharing about it creates the potential for your answers in the finalized transcript to be tainted or watered down the road. OSM