When you bring a lawsuit seeking compensation for the harms and losses you suffered because of someone else's carelessness, you will be required to give pretrial testimony.

This is known as a deposition.

It's also known as an examination before trial.

It is done in your attorney's office. There will be a court reporter there to record all the questions that are asked and all the answers that you give. You actually raise your hand and swear to tell the truth.

This pretrial question and answer session testimony can be used later at trial. Although there is no judge present and you are not in the courtroom, this testimony counts just the same as if you were at trial testifying.

Before the defense attorney has an opportunity to actually start questioning you, you will have been prepared by your attorney either earlier that morning were a few days earlier. It is critical to go through this preparation session with your attorney before actually arriving for your pretrial testimony.

In legal circles, it's known as a deposition prep session.

What's the real reason for this?

This practice session is to give you an idea of what type of questions the defense attorney is likely going to ask you. It gives you an idea of how the question and answer session will go and explain the process to you.

The preparation session is really nothing more than asking similar questions to what the defense attorney will be asking you. It's done to prevent any surprise.

One of the most common comments I get during the pretrial question and answer session is “Why is he asking me all those questions? Those things have nothing to do with our claim in this case.”

During our prep session I have the ability to explain to you why the defense attorney will be asking you many questions that you believe have absolutely nothing whatsoever to do with the claims being made or the defenses that are raised in your case.

However, many of those questions are proper and still must be answered.

If there are questions that I feel are inappropriate, I will object and let you know that they are inappropriate.

I find that the very best personal injury and medical malpractice trial lawyers in New York are ones who rarely, if ever, show their clients any documents during the preparation session for their pretrial testimony.

Why is that?

For the simple reason that if you review any documents in order to prepare you for your question and answer session or you review any records to refresh your memory about the events that occurred, then the defense attorney will have every right to review whatever records you looked at.

If you reviewed some medical literature that focused on your injuries, the defense attorney has every right to ask you for it and to review it and then question you endlessly about it.

If you reviewed some notes you had taken at the time of the incident, the defense lawyer has a right to ask to see those notes and to question you about each and every entry that you have made.

Defense attorneys will always ask whether you have kept a diary or made notes about conversations you had with people who were involved in your incident. If you did, the defense attorneys will then ask to see the original notes or records or alternatively, they will ask to see copies. Then they will spend what appears to be hours questioning you about every notation you have made.

“Why did you make this entry? Who are you speaking to here? At what time did you make this entry? Why did you write this entry and not this one?”

This will go on for many hours.

The preparation session is designed to see what you remember about your incident.

It's designed to refresh your memory about what happened to you and to discuss your injuries. It's designed to explain to the defense attorney who will question you shortly how your injuries have affected you and how it has affected your family.

Some clients ask “How do you want me to answer the question?”

I always laugh when I hear such a question.

The answer is “Truthfully.”

There is no magic way to answer a question about something you remember or don't remember. Literally, the best answer I can give you is to testify about what you remember and do it truthfully. I always advocate not embellishing or exaggerating any of your testimony. Doing so will become obvious to everyone.

Embellishing and exaggerating your injuries or how they affect you means that you will lose credibility.

A Doctor reviews records before testifying

Let me share with you what happened when I asked the doctor in a medical malpractice case during pretrial questioning what records he had reviewed in preparation for today's questioning.

It was a medical malpractice case where my client had brought a lawsuit against the New York City health and hospitals Corporation. That is the legal entity responsible for the municipal hospitals within the city of New York. That could include Bellevue Hospital, Queens County Hospital, Kings County Hospital, Jacobi Hospital and many others.

At the very beginning of my questioning, I asked the doctor whether he had reviewed any medical literature in preparation for coming into today's question-and-answer session. He answered “Yes.”

I asked him what records he reviewed.

He then proceeded to tell me he reviewed about 10 articles from medical journals.

Were any of those articles tha you reviewed with consistent with your position in this case?

He answered “Yes.”

Were any of the articles that you reviewed inconsistent and took a different position than the defense you are raising here in this case?


Doctor, tell me what articles you actually reviewed in preparation for coming today?”

The defense attorney raised an objection but since the doctor had volunteered this information in response to my question, she had no choice but to allow the doctor to answer the question.

I then asked the doctor whether he had brought those articles with him today.

His answer was “Yes.”

I then asked to see all those articles.

His attorney again objected.

I argued, successfully, that since the doctor had in fact reviewed articles both for and against his stated position in this case and had done so to prepare for this question-and-answer session, I was fully within my right not only to ask him for the titles of those articles but also the articles. I would then be able to review them so I could question him as part of his pretrial question and answer deposition.

The defense attorney clearly was unhappy with the doctor, but clearly from a legal standpoint she had no choice but to allow the doctor to turn over those articles so I could review them and then question him about that.

What do the best lawyers in New York do?

That's why you will find that the best lawyers in New York who handle accident cases, medical malpractice cases and even wrongful death cases will not show their client any records prior to their question-and-answer session in order to refresh their memory about the events that occurred.

To learn about a doctor who lied during pretrial testimony, I invite you to watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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