‘How do I give a deposition?’
Steven Conway, DC, DACBOH, Esq

I just received my first subpoena to appear for a deposition. I am very nervous and would like some advice on things that I should or shouldn’t do or say.

The first thing to do is relax. I believe that most doctors experience some form of nervousness when dealing with depositions or appearing as a witness at a trial.

The next thing to do is prepare. Review the patient’s file so that you know it cold.

The opposing attorneys use the tool of the deposition to gain necessary information in preparation for going to trial. The attorneys do not want any surprises so they are going to ask you a series of questions to box you into specific opinions. They are basically looking at two things during your deposition — your personal credibility and the strength of your opinions.

Your personal credibility is built on your confidence in yourself as a chiropractor and the reputation that you have developed within your practice and community.

The strength of your opinions is based upon your professional procedures and documentation.

A new doctor’s first deposition is usually the time when they fully understand the importance of proper documentation. If your documentation is at a high level, the deposition generally goes easily. If your documentation is poor, the type of questions experienced during the deposition can genuinely rattle you.

I have seen chiropractors (who presented with poor documentation) get so nervous during questioning that visible sweat could be seen dripping from their foreheads.

At the actual deposition, the attorney will start with general questions related to a specific part of your treatment.

For example: In an automobile accident deposition, the attorney will need to establish your opinions about the mechanism of injury, the validity of the injury, and your treatment of the injury, as well as to determine if there was any permanent impairment as a result of the accident.

You need to be prepared to have an opinion on each section. The attorney will slowly test your confidence through a series of questions usually related to a degree of certainty.

This is a key point for new doctors answering questions in a deposition. Your degree of certainty in your opinion does not have to be 100 percent to be correct. Your opinion has to be probable, which means 51 percent or more — that’s it.

The words you should use to express this level of certainty are “my opinion is based upon a reasonable degree of chiropractic certainty.” Do not use the word “possible,” since anything is possible. Your opinion has to be “probable” to be valid.

A second key point to remember is that you are there testifying under oath as an impartial expert witness. You are not an advocate for your patient. You are not there to win the case for your patient. Just provide opinions that reflect your knowledge of the case.

Here is a brief checklist to help you prepare for your first deposition:

1. Update your curriculum vitae. Have it ready to hand to the opposing attorney

2. Review your file. Do not remove any information as it will appear that you are trying to hide something.

3. Meet with the patient’s attorney. Prior to the deposition, review all aspects of the case — the good, the bad, and the ugly. The attorney needs to know everything.

4. Do not volunteer information. During the deposition, just give short, concise answers.

5. Do not anticipate the next question. Stay in present time and answer the question at hand.

6. Ask for clarification. If you do not understand the question, ask the attorney to repeat or rephrase it.

7. Ask for single questions. If asked compound questions, request the attorney to separate the questions, and then answer each one separately

8. Take your time to answer. There are no time limits during the deposition (with the exception of video depositions).

9. Refrain from using absolute words. Don’t use words such as “always” or “never” as they can be used against you in follow-up questions.

10. Review before signing. Obtain a copy of the deposition and review it for accuracy before you sign the form indicating that everything was correct.

After the deposition, you will later think of some brilliant answer to a question that you wished you had stated. But, don’t worry. We all have had that experience. Just remember that while under pressure, you did your best.

Preparation is the solution to your nervousness. The better prepared you are, the more confident and credible you will be.

Steven Conway, DC, DACBOH, Esq., is a partner in True North Chiropractic Consultants LLC, which provides guidance and ethical solutions to the barriers found in chiropractic practices. www.truenorthchiropracticconsultants.com. He can be contacted through his Web site or by e-mail at chirolaw@aol.com.

DISCLAIMER: This column is provided for educational purposes only. The accuracy or timeliness of the information presented is not warranted. The information is not presented as legal advice and no attorney-client relationship is established.