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“The life of the law has not been logic; it has been experience.”

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Depositions and Trial Testimony: Knowing the Difference When You’re Under Oath

Depositions and Trial Testimony: Knowing the Difference When You’re Under Oath

A subpoena hit your door and you're staring down the barrel of a lawsuit. Malpractice attorneys know all too well that when you're facing this sort of legal action, it's critical to say and do the right things. You may be asked to give testimony in a deposition, where the plaintiff's attorney will ask questions about what happened to your patient. You might also go to trial, where you'll take the stand to give testimony about the case. In each of these settings, you'll be under pressure and required to tell the truth. Knowing the difference and how to act can help you manage a potentially uncomfortable situation.

What are depositions all about?

A deposition is the plaintiff's attorney's opportunity to ask you questions that will elicit information for later use. Depositions are taken as a part of "discovery," the litigation process where the two sides gather facts. The plaintiff's attorney will ask you what happened, and will try to get you to admit things that can be later used to undermine your credibility. While you are required to tell the truth, there are some tips that can help you make it through the deposition with your defense intact.

Tips for surviving depositions

Malpractice attorneys will advise you that a deposition is taken under oath. This means that you can be charged with perjury if you lie. Even while telling the truth, it's critical to offer only that information that you know. Likewise, it's important to answer only the question you are asked. Many defendants make the mistake of going off on a tangent or trying to explain themselves during the deposition. You will never talk your way out of the lawsuit during the deposition. In fact, more talking generally leads you and your attorneys into trouble rather than away from it.

How does trial testimony differ from deposition testimony?

At trial, you're speaking directly to the jury. You'll also have the opportunity to offer an expanded version of your thoughts. While depositions are often taken in the quiet recesses of a backroom, the trial will be out in the open for all to see. Plaintiff's attorneys can sometimes be harsh and aggressive during depositions, but they'll be more affable during a trial. After all, they will want to maintain appearances so the jury thinks they're nice. At trial, your goal is two-fold. Not only are you giving the jury information, but you're also helping to build credibility and likeability.

Important things to remember during trial testimony

Juries are generally comprised of average folks. They'll be thinking average thoughts while you're sitting on the stand. They might wonder whether you cared about your patient. They might wonder, too, whether you're the sort of doctor they would want to see. While depositions require you to be technically sound in your answers, trial testimony is much more about providing explanations that speak to the humanity of the jury. While they'll be hearing about the pain and suffering of the plaintiff, part of your job in giving testimony is to show them that you care about the patient, too.

As you progress through the litigation process, you'll be asked often to provide answers in official and non-official settings. Whether in trial or in a deposition, it's critical to tell the truth and to follow the lead of your attorney. In deposition testimony, you'll always have a right to stop and consult with your malpractice attorneys. At trial, you'll need to be well-prepped on how to handle the questions asked of you. Remember that even when a plaintiff's lawyer is questioning you, your own lawyer will have a chance to re-direct, giving you an opportunity to provide more eloquent explanations about what happened and why it happened. Remember these things and you can make it through depositions or the trial testimony process.

For in-depth information about this topic and practical tips for approaching Depositions and Trial Testimony, please read or download Julie Ramson’s article “The Difference between a Deposition and Trial Testimony” published in the PSIC Physician Connection Newsletter, PSIC_Physician_Connection_Newsletter.

Contact our Julie Ramson for more information about surviving depositions.

Categories Legal Malpractice Defense

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