You were injured.

By a careless doctor.

You've had to sue your doctor.

Someone you once trusted.

But not now.

Not with your injuries.

Not with your disabilities.

Not again.

You want others to know.

You want to make sure he never does this again.

That's why you're suing him.

For compensation.

For the harm and losses you suffered.

All because he was careless that day.

Your doctor says he did nothing wrong.

Your doctor says he treated you appropriately.

Your doctor says you are responsible for most if not all of your injuries.

You doctor also says your injuries are not that bad.

That means that your lawsuit will proceed.

It will proceed with discovery.

It will proceed with the exchange of medical records.

It will proceed with pretrial testimony.

Testimony known as a 'deposition'.

It's also called an 'examination before trial'.

It takes place in your lawyer's office.

In his conference room.

There's no judge present.

There's no jury present.

Just you, your lawyer, a court stenographer and the opposing lawyer.

The court stenographer is there to record all of the questions you are asked and all of the answers you give.

Those questions and answers are then transcribed and put into a booklet called a transcript.

Those questions and answers are really sworn testimony.

Your answers carry the same exact weight as if you are testifying at trial in front of a jury.

That means that what you say during pretrial questioning is just as important as when you testify at trial in the court house.

The only difference is the location where this is taking place.

Let's focus on this pretrial testimony for a moment...

This deposition.

Your doctor's attorney is there to question you.

To learn from you what happened.

To learn from you what injuries you have because of what happened.

To learn about your past.

To learn about your past medical history.

To learn what medical care and treatment you've had since you you brought this lawsuit.

To learn what you can and cannot do now.

To learn what you used to be able to do.

This attorney knows very little about you.

He only knows what's on paper.

He has your medical records.

He knows what your allegations are against his client.

He knows a bit about your past since he's done some digging.

He's likely reviewed your social media pages on Facebook, Twitter, Linkedin, Snapchat, Instagram and done Google searches on you.

He'll know if you've sued anyone before.

He'll know if you were in a car accident before.

He'll already know if you were convicted of a crime.

His goal is to get lots of information from you.

He knows that the more you talk, the more information he can use against you at the time of trial.

Even though this is a civil case, anything you say during your pretrial question-and-answer session can be used against you at trial.

You might be familiar with the Miranda warning which says “You have the right to an attorney. If you cannot afford an attorney one will be provided to you by the court. Anything you say can and will be used against you in a court of law.”

Those Miranda warnings are given by the police when they arrest a suspect.

Those warnings do not apply in a civil lawsuit where an injured patient is trying to obtain money as a form of compensation for all the harms and losses they suffered because of a doctor's carelessness.

The attorney who questions you on behalf of the doctor will be asking you many questions during your question and answer session.

He's looking for contradictions.

He's looking for contradictions between what's in your medical records and what you are answering today.

He's looking to test your memory.

When your case comes up for trial years later, the doctor's attorney will be asking you similar questions during his cross-examination.

If your answers vary compared to the same questions that you were asked during your pretrial testimony, the defense lawyer will use those contradictions to show the jury that you're being less than truthful.

Let's not kid ourselves here.

The defense lawyer will try to show the jury that you are a liar.

If he is able to show that there are significant contradictions between the answers you give at trial and the one you gave a few years earlier during your pretrial testimony, that could be a significant problem.

The reason?

It's because your credibility is everything a trial.

If the jury perceives that you are trying to hide something, they will take it out against you.

If the jury perceives that you intentionally lied, that could easily destroy your case.

Perceptions are often reality at trial.

Then again, if you do not have a valid explanation for why your answers are materially different at trial compared to the answers you gave during pretrial questioning, the jury will have every right to disregard part or all of your testimony.

At the end of the trial when the judge gives the jury legal instructions, there is one particular legal instruction that applies where a witness has lied.

Legally, that legal instruction has a fancy Latin term called “Falsus in Uno.”

The judge explains that if the jury believes that a witness has lied about one thing, they have the right to disregard part or all of that witness's testimony.

The reasoning behind that legal instruction is that if a witness has told a little white lie, how then can the jury believe anything else this witness has said?

Let's get back to your deposition...

The defense attorney asks you a series of simple questions.

You quickly answer.

However, your attorney has told you to only answer the question asked.

Don't give any explanation.

If the opposing lawyer wants more information, he'll ask you about it.

Keep your answers simple and short.

The doctor's attorney now comes to the part where he's asking about your injuries.

Instead of asking a series of questions calling for yes or no answers, he does something different.

He says "Tell me what happened."

I immediately object.

That question calls for long-winded narrative answer.

I tell him that answer could go on for 10 minutes or more.

I inform him that if he really wants that answer, I will not permit him to ask follow-up questions to her long-winded explanation.

Instead, I suggest he ask a series of questions geared toward obtaining the answers he seeks.

There is a strategic reason why the defense lawyer wants to ask my client an open ended question such as “Tell me what happened..."

He wants my client to talk at length.

He wants to give her the opportunity of experiencing verbal diarrhea believing that the more she talks the better it will help her case.

In some limited cases this may be true.

However, in most cases, the defense lawyer will then dissect each and every word and sentence of her answer and then ask hundreds of follow-up questions.

That's what good attorneys do.

They will not simply accept whatever answer she gives.

They will probe.

Further and further into her answer.

Here's an example...

“Mrs. Jones, do you have any notes about the conversations you had with your doctor?”

“Well, I don't really have notes but I have a calendar with comments on there.”

“For how many years did you keep this type of calendar and notes system?”

“Did you make a notation on every visit when you saw your doctor?”

“Did you write in shorthand or in longhand?”

“Did you write down your complaints that you made that day?”

“Did you record what the doctor did and what his physical examination consisted of?”

“Or, did you only record your doctor's findings and his recommendations?”

“Did you save these calendars?”

“Did you review these calendars and your notes before coming here to testify today?”

“Do you have those calendars and notes with you today?”

This series of questions about her notes could go on for hours.

By getting my client to talk at length, it gives the defense attorney a tremendous opportunity to delve into areas that often have nothing to do with the facts of our case or the defenses raised.

Legally, the defense has every right to ask about the details of events surrounding the claim being made.

The defense argues that they have the right to ask open-ended questions having the witness describe in their own words what happened and why.

They also argue that they should be free to follow up and ask other questions that lead to other topics.

I find that the best defense attorneys often use a combination of these strategies.

When they need information they will ask an open-ended question and allow my client to answer as she sees fit.

On the other hand, they will also ask short leading questions that merely call for a yes or no to confirm or deny certain facts or statements that they already know to be true.

An injured patient often believes that by explaining what happened the defense attorney will better understand why we are more likely right than wrong that what we are claiming is true.

That's not always the case.

Remember, anything you say can and will be used against you by the defense attorney at the time of your trial.

To learn about questions I ask a doctor during his pretrial question and answer session, I invite you watch the quick video below... 


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