Kick your lawyer?

With your high heeled shoe?

With the pointy toe?

This isn't a game of footsy.

This isn't college flirting.

This is not some affair you're thinking of having.

We're talking about a real-life civil lawsuit.

A lawsuit you've brought against your doctor.

Your doctor whom you believe violated the basic standards of medical care.

The doctor was careless and caused you significant harm.

Permanent harm.

Permanent injury.

You've decided to bring a lawsuit here in New York.

Seeking money as a form of compensation.

For all the harms, losses and injuries you suffered because of his carelessness.

You hired the best attorney you could find.

Someone who had lots of experience with lawsuits against doctors and hospitals.

Someone who educated you and explained how your case worked, even before you met him in his office.

Someone highly professional.

Someone who told you they had your case evaluated by medical experts.

Your lawyer told you that his medical experts confirmed there was medical negligence.

Your lawyer told you the medical carelessness was a cause of your injury.

 are lawsuit has been going on for six months now.

Your attorney has told you you must appear in his office to be questioned by the defense lawyer.

Legally, you learn that this is a deposition.

It's really pretrial testimony.

There is no judge present.

There is a court reporter in the conference room with you along with your attorney and the defense lawyer.

There is no jury present.

Instead, this is an informal setting where a defense lawyer gets to ask you questions about what happened and what injuries you have now.

Don't be fooled.

The answers you give to these questions carry the same exact weight as if you were testifying at trial.

Before your scheduled deposition takes place, your attorney will ask you to come into his office in order to prepare you for your question and answer session.

Lawyers like to call this a prep session.

Those who have never been through this process before think it's an opportunity for the attorney to tell you the answers to the questions and put words into your mouth.

That would be untrue.

A prep session is an opportunity to explain to you exactly what will occur during this pretrial question and answer session.

It gives your attorney an opportunity to ask you questions, similar to what the defense lawyer will be asking, in order to get you familiar with the topics.

It allows you the opportunity to think about your answers.

You should know that this pretrial deposition is not a test.

It's not a memory test.

It's not a pass/fail test.

It's simply an opportunity for the defense lawyer to find out from you what happened and how those injuries have affected you on a daily basis.

The defense attorney will spend a great deal of time probing your background as well as your earnings history and your damages.

There will be many instances where you may not remember a specific detail.

For example, in a medical malpractice case if you were seen and treated at your doctor's office 20 times over the span of two years, it will be virtually impossible to for you to remember each and every detail that occurred on every single visit.

If the defense attorney asks you to recite each and every conversation and every single detail about that conversation and interaction, and you were to recite verbatim every conversation and every observation, it might be questionable about how you are able to remember all those details years later.

There are instances where an attorney asks you a question and you simply don't remember.

How do you answer the attorney?

You have sworn to tell the truth.

A court stenographer is in the room in order to record all of the questions and all of your answers.

At the end of your question and answer session, the court stenographer puts together all of the questions and answers into a booklet called a transcript.

That forms the basis of your pretrial testimony.

The defense attorney can use this against you later on at trial.

So let's get back to the question I asked earlier...

What happens if you don't remember the answer to a question posed to you by the opposing lawyer?

Do you simply guess?

Do you make something up?

Do you answer him with some answer, regardless of whether it is right or wrong, simply to give the appearance that you are smart and knowledgeable?

The answer is that you reply “I don't remember.”

There is nothing wrong with telling the attorney that you don't remember a specific fact.

However, a year down the road, when your case comes up for trial, if you were to suddenly remember the answer to the question and testify to the jury that you now know the answer to that question, the defense lawyer is going to use that testimony to cross-examine you to show that you are less than credible.

He's going to argue that your memory was fresher at an earlier point in time.

“Mrs. Jones, isn't it true you did not remember the answer to this question that I asked you a year ago?”

“You just testified that you knew the answer to this question, correct?”

What an attorney never wants to do is to ask the witness how she now knows the answer but a year earlier she didn't.

Remember, you never ask a question to which you don't know the answer.

If you do, the answer will come back to bite you on the butt and could harm your case.

Let's get back to your deposition...

The defense attorney has now asked you a question and you don't remember the answer.

Can you kick your attorney under the table in order to suggest the answer or give you the answer?

The answer is no, you cannot.

It would be improper for your attorney to suggest the answer or to give you the answer.

Even if you wanted to talk to your attorney about the question, you would need to give an answer first before you could go in the hallway and chat with your attorney.

After you do go in the hallway and talk with your attorney, you might decide to change your answer.

That means when you return back into the conference room you simply let the defense lawyer know that you need to change your answer.

The opposing attorney can't stop you from changing your answer.

However, he can question your motive for changing it.

He can question the timing of when you changed it.

The defense lawyer will make a big deal about the fact that you only changed your answer after consulting with your attorney.

"Mrs. Jones, I asked you a moment ago if you knew what the doctor said. You replied you didn't remember, correct?"

"Immediately after you gave that answer, you asked to speak to your attorney in the hallway. We took a break and you spoke to your attorney. Immediately after we resumed questioning, you advised me you needed to change your answer. Is that true?"

"What is it that you want to change your previous answer to?"

"Now you just happen to remember what the doctor said after talking to your attorney?"

"But before talking to your attorney, you didn't remember what he said?"

Remember, in these are civil lawsuits, your credibility is everything.

Perception is everything.

To learn how credibility is the most important part of your case, I invite you to watch the quick video below...


Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer