September 2002

Deborah Green’s LEGAL Q&A

Q My deposition is going to be taken on behalf of my patient. I have been deposed before, but I have always felt uncomfortable and believed that I could have done a better job. I would like to impress my patient’s lawyer, as I think she can be a good source of referrals. What do I need to know?

A It’s possible you may be dealing with an inexperienced lawyer or a lawyer who is unfamiliar with the type of services a chiropractor provides. In such a case, you can offer both the lawyer and the patient a valuable service by teaching the lawyer what you do. Specifically, explain to the attorney why your treatment differs from that of an allopathic doctor; you will be amazed at how many lawyers do not know this.

A good way to make things clearer to the lawyer and the jury is to go through your records and highlight every technical word that you find, then find a plain-English equivalent for the word. Substitute the plain-English terminology for the technical jargon in your testimony. If you have ever sat through a foreign film without subtitles, you will have some idea of how overwhelming it can be for non-chiropractors to listen to technical/clinical terminology. If you can engross the jury in what you are saying by presenting it in words they understand, they will better understand your patient’s pain and be more prone to identify with it.

Make your patient’s injuries come alive for the jury - so they can almost feel the pain that your patient has experienced. For instance, if you were talking in technical terms, you might say: “Ms. Smith’s cervical spine was so impaired, she lost 50% of bilateral rotation and 75% of extension and flexion. She also experienced radiating pain down both upper extremities.” However, you can communicate information that means more to the jury by saying, “Ms. Smith’s injuries were so severe, she could not turn her head more than two inches without suffering excruciating shooting pains down her back.”

Make sure you are extremely familiar with your patient’s records. If you have an opportunity to examine the independent medical examiner’s (IME) report, make sure you do so. Explain to your patient’s lawyer in detail why you believe the IME report is incorrect or was improperly conducted if you believe that to be the case. If the opposing doctor has written any books or articles, make sure you are familiar with them. If you believe they are in error or contradict what the doctor says about the patient, advise the lawyer accordingly, and let him or her know of any articles or books that support your position.

Each state has its own laws and rules with regard to expert testimony, and this column is too short to examine all of them.

Some rules, however, are the same, and you should be aware of them:

• First and foremost, it should go without saying that you need to tell the truth, completely and in its entirety. The truth may not always shed the best light on your patient’s case, but you must still stick by it.

• Remember that the lawyer taking your deposition is not your friend. The opposing lawyer will generally be very friendly and polite to you. Remember that this lawyer is trying to trap you into saying something that could be used against you later at trial. The best way to deal with this approach is to make sure you only answer the questions you are asked. This is generally easier said than done during the course of a deposition, but it is something to which you need to pay careful attention. Do not provide gratuitous explanations.

• If you do not understand the question asked of you, ask the lawyer to rephrase it. If you still do not understand it, ask the lawyer to rephrase it again until you do understand it. If you only have an answer to part of the question, say so and describe what part of the question you are answering.

• If the lawyer asks you something that you do not remember, say so. Do not guess, do not speculate, and do not assume what an answer might or should be. You either know an answer or you do not. This is not a test, and you are not being penalized for admitting you do not know the answer to something.

• You may encounter a lawyer who, after you are through answering a question, will summarize or rephrase your answer and then ask you if the summary is correct. Regardless of whether it is or is not, tell the lawyer that you stand by what you said, not by what he or she has summarized or rephrased. Your response will be noted in the deposition and the opposing lawyer will then not be able to put words in your mouth.

• Come dressed to the deposition as you would to the trial. This means a jacket and tie if you are a man, or a business suit if you are a woman. The opposing lawyer is evaluating what type of witness you make, and your potential impact on a jury from the moment that you walk into the room. A casual attitude toward the proceedings at a deposition may result in a lesser offer for settlement, or no offer at all if you or your records appear to be sloppy or unprofessional.

• Occasionally you may run into a lawyer who will try to intimidate you. Do not allow this to happen. If you think the lawyer is being purposely abusive, bring this to the attention of your patient’s lawyer, and ask him or her to do something about it if something hasn’t been done already. Stay polite to the other attorney regardless of how much he or she galls you. The lawyer may be trying to see how well you stand up to pressure. Do not engage in sarcasm - the record will make you look bad.

• During the course of the deposition, your lawyer may object to certain questions. If this happens, stop talking immediately - even if you are in mid-sentence! Let the lawyers get their responses on the record. You will then be advised whether you may finish answering the question or not.

• Watch out for questions that use the words “never” or “always,” unless what you are describing absolutely requires such an answer.

• If asked whether you have reviewed your testimony with the patient’s lawyer, admit it.

Ms. Green has been a practicing attorney since 1977. She is admitted to the practice of law in New York and Florida.

LEGAL DISCLAIMER
This column is governed expressly by the terms of this disclaimer and provided for educational purposes only. The accuracy of the information is not warranted, nor is it intended to be advice as to a specific fact pattern. The information contained herein is not presented as legal advice with respect to any matter, and no attorney-client relationship is hereby established.