Some thoughts for plaintiffs getting ready for deposition in a Texas medical malpractice case

Depositions are a critical part of virtually every Texas medical malpractice case. While they are routine to lawyers, they’re unfamiliar to plaintiffs and their family members and, thus, can be a source of anxiety. This article will pull back the curtain so you can understand how depositions work and know what to expect.

What is a deposition?

A deposition is an opportunity for attorneys to obtain out-of-court sworn testimony from a party or witness. In Texas state courts and, in some situations, in federal court, the deposition transcript can be read into the record at trial as evidence or can be used to impeach witnesses who change their story.

How does a deposition work?

Depositions are scheduled through a notice of deposition that’s served by the attorney for the party who will ask the first questions at deposition. The notice invites all parties to attend and participate or ask questions at the deposition. The notice will also specify whether the deposition will be video recorded.

Some deposition notices include a subpoena duces tecum or request for production, which may require the witness to produce specified documents or material things at the time of deposition.

Physically and mechanically, a deposition is typically conducted in an attorney’s office in the presence of a court reporter. (As I’m writing this in the middle of the COVID-19 environment, many depositions are being conducted by Zoom or some other Internet video platform. Regardless, though, the way a deposition works is generally the same).

Normally, a plaintiff’s deposition is taken in a conference room at the office of the plaintiff’s attorney. The same is true for family members and fact witnesses disclosed by the plaintiff.

The attorneys for all parties are present at deposition. The deposition begins with a court reporter swearing in the plaintiff or witness. The oath is a promise to tell the truth, the whole truth, and nothing but the truth. In other words, the witness must promise to answer questions with truth and candor, not leaving out material details that would generate a false impression.

Unlike some TV legal dramas that make depositions look like a gang up or free-for-all, most depositions are pretty orderly. Only one attorney may ask a question at a time. For a plaintiff’s deposition in a case with multiple defendants, when the first defense attorney is finished asking questions, the lawyer for another defendant asks questions, and so on until all defense attorneys have asked their questions. Sometimes, after all counsel have had a chance to question the witness, some lawyers will have additional questions to ask.

The goal of depositions

From my perspective, there are two types of depositions, trial depositions and discovery depositions.

Trial depositions are less common. They are typically video recorded and are intended to preserve the testimony of a witness who will not be able to appear live at trial. It’s unusual for a plaintiff to be the subject of a trial deposition unless he or she has a terminal condition and is not expected to be alive at the time of trial.

The vast majority of depositions of plaintiffs are discovery depositions. When a defense lawyer takes a plaintiff’s deposition, there are two main objectives. The first objective of the plaintiff’s deposition is to discover what the witness knows about the incident in question and also to obtain background information. The second objective is to evaluate the plaintiff as a witness, which involves making an assessment of whether the judge and jury will perceive the witness as likable and truthful.

I believe that both objectives are equal in importance.

The boundaries of depositions

Under the Texas Rules of Civil Procedure, a deposition can last up to six hours on the record. That means it doesn’t include breaks. Most plaintiffs’ depositions don’t last that long, but it’s always a good idea to be aware of this possibility.

With that said, depositions aren’t endurance contests. If you need a break, ask. Attorneys generally accommodate requests for a break so long as there is not a question on the table that needs answered first.

Texas courts give wide latitude to what can be asked at depositions. In a typical medical malpractice case, a plaintiff should expect questions including:

• Complete medical history. They won’t focus exclusively on the incident related to the lawsuit, but will instead look back at hospitalizations and healthcare received years or even a decade earlier.

• If there’s a claim for lost wages or loss of earning capacity, expect detailed questions about employment history. This includes jobs held, supervisor names, pay rates, and reason for leaving each position.

• Most attorneys will ask background questions concerning family, education, and personal life.

• If there is a claim of disability or impairment, there will be questions about social, work, and other activities that the plaintiff could do prior to the incident but no longer can do.

• If there’s a claim for loss of consortium, which is injury to the spousal relationship, then there may be questions of a personal and intimate nature to assess the impact of the incident.

On TV, attorneys are allowed to make colorful narrative objections. Under Texas law, though, objections are limited to “objection, form” and “objection, non-responsive.”

When an attorney makes an objection to the form of the question, it means that he or she believes that the question is in inappropriate or defective in some way. So long as the witness understands the question, though, the question may be answered. This objection must be made before the witness answers the question or it is waived.

An objection to the responsiveness of the question is made after the witness completes an answer. It basically means that the objecting attorney believes that the answer of the witness exceeded the scope of the question. For example, if the question is “What color is the sky?”, it would be nonresponsive for the witness to say, “The sky is blue and the grass is green.”

The plaintiff’s attorney may instruct the plaintiff not to answer a question if it is harassing or any answer would be misleading. Questions, objections, and answers proceed and the objections are sorted out later, as needed, by the attorneys and the court.

Preparation for deposition

Experienced Texas medical malpractice lawyers will meet with their clients before deposition to discuss information similar to what’s in this article, as well as the medical records and case-specific issues. This is an important time that gives plaintiffs the opportunity to ask any questions they may have. What’s discussed during these meetings is protected by attorney-client privilege.

It’s important for plaintiffs to mentally prepare themselves for the fact that the deposition will involve lots of questions about personal or even sensitive subjects that wouldn’t normally be discussed. I think the best way to handle this is just to consider yourself an open book.

When you go to a doctor, you’re often asked to undress. That’s necessary for the doctor to perform an examination of you. It may be uncomfortable for the patient, but it’s very routine for the doctor. The same is true for a deposition. Don’t allow yourself to become uncomfortable with questions, because it’s just a routine part of the job for the attorneys asking.

Speaking of clothing, the question often comes up of what to wear. It’s not necessary to dress in something formal or uncomfortable. On the other hand, is not a good idea to dress too casually. Remember that you’re trying to make a credible impression, so a good general recommendation would be to wear what you would to work, a business function, or a church or religious service.

A witness who is comfortable in answering questions from the opposing side will appear more credible than someone who is evasive. I’ve seen witnesses become angry because they think the attorney is asking irrelevant questions. I’ve seen witnesses ask their attorney if they have to answer a question. Both of these are terrible in terms of establishing credibility as a witness.

Always remember to tell the truth, the whole truth, and nothing but the truth. Here are some considerations on this point:

• Allow the attorney to complete the question before answering. It’s impossible to answer a question truthfully unless you know what the question is.

• Only answer and give testimony about matters that are within your personal knowledge—things that you experienced or observed firsthand, rather than what someone else told you.

• If you don’t recall the answer to a question, the only appropriate thing to say is, “I don’t recall.”

• If you don’t have personal knowledge of the answer to the question, the only accurate thing to say is, “I don’t know.”

• Don't get hung up on trying to say "yes" or "no" or keep your answers brief. It's more important to answer in a natural way that reflects authenticity, cooperation, and truthfulness.

Avoid the temptation of trying to think ahead about what the attorney will ask next. Instead, think of the question and answer process as a chalkboard. The attorney writes the question on the chalkboard and after it’s answered, it’s erased and the process starts over.

On a related note, it’s not the role of the plaintiff or fact witness to be a teacher or professor that educates the attorney. I’ve often described giving deposition testimony as the easiest job in the world. The only responsibility of the plaintiff or witness is to listen carefully to each question and answer those questions that are within his or her personal knowledge. It’s never wrong or inappropriate to say I don’t recall or I don’t know, so long as that’s truthful.

Don’t worry

You may be thinking, “Easier said than done.”

Plaintiffs should remember that their attorneys will be with them throughout the deposition. Competent medical malpractice plaintiffs’ lawyers will be listening carefully to each question and taking copious notes. On breaks, plaintiffs and their attorneys can meet confidentially to discuss how the deposition is going, any questions, or any areas that need clarification.

When necessary, after the defense lawyers have finished their questions, the plaintiff’s attorney can ask questions to either clear up ambiguous answers or get necessary testimony on the record that wasn’t covered by the defense questions.

Finally, after the deposition is complete, the court reporter will prepare a word for word transcript of all questions, objections, and answers. The witness gets 20 days to review the transcript and make any corrections. This isn’t an opportunity to reinvent testimony, but rather to correct stenographic errors and, in some instances, clarify testimony that was misunderstood or misstated.

If you have been seriously injured because of medical malpractice in Texas, an experienced, top-rated Houston, Texas medical malpractice lawyer can help evaluate your potential case and, when the time comes, guide you through your deposition.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.