Learn how to be a black belt attorney when questioning a doctor at their deposition. 1. Never give advance warning of what you intend to ask. A black belt is confident of their abilities. They don't need to show off. They don't need to put on a show. They certainly don't need to impress the doctor with their legal prowess. When questioning a doctor at a deposition, I always advocate asking the key questions in the case AT THE VERY BEGINNING of the questioning. Most physicians are not anticipating that the key issues will be discussed at the beginning. Most defense attorneys will prepare their doctor-client for the typical credentials checklist..."Where did you go to medical school, where did you do your residency, are you board certified, etc." By going directly to the heart of the case early on in the deposition, you might stand a slight advantage and get an unexpected answer you would not have obtained had you started with the standard questions. 2. Question the doctor as if you are cross-examining him at trial. I advocate using leading questions at a deposition. Why not? It's good practice for trial, and it doesn't give the doctor much wiggle room when answering a question. Obviously there are times when I need a descriptive answer, and have no problem asking the "Why?" question during a doctor's deposition. There are also times when I want a doctor to talk at length about why he rendered a particular treatment, or what was the standard of care for treating a particular condition. In New York, lawyers are no longer permitted to obstruct depositions by continually objecting to questions. Virtually every question asked must be answered, even though the defense attorney raises an objection. The only time a question does not have to be answered is when it is "palpably improper" or addresses something that is inherently privileged material..."What did you talk to your lawyer about before the deposition?" 3. Be respectful. A black belt is always respectful to an adversary and to their colleagues. This is not a sign of weakness. Just the opposite. It is a sign of strength. Being hostile and argumentative with a doctor at their deposition, in my opinion, is not productive. If you are attempting to 'push the doctor's buttons' by being hostile, your intention may be worthy, but the method you are using is self-defeating, and not appropriate. Everyone in the conference room knows what role they play. The doctor looks at you as the 'bad guy'. The defense attorney looks at you as an adversary. You look at the doctor as the culprit who caused your clients' horrific injuries. I advocate putting all this aside. Be respectful, and give the doctor the respect he deserves. Then, with your exacting questions, tear him apart step by step- and do it with a smile on your face. "Please define erbs palsy. Please describe how a baby can get erbs palsy. Is there any other way to get erbs palsy except by putting excessive lateral traction on the baby's head? Would you agree that putting excessive lateral traction on the baby's head would be a departure from good medical care?" Remember, each question is a building block for the next one. Build up your case with carefully crafted questions that establish the standard of care, then show through the doctor's own records, that those standards were not followed. 4. Understand your limitations A good medical malpractice lawyer knows what he knows and also knows what he does not know. (Some call this Murphy's law). The doctor has spent years studying medicine. Expect that they will have a greater breadth of the key issues in the case than you. Accordingly, you must prepare extensively. Get out those medical textbooks. Search those medical journals. Re-review the hospital records. Call your medical expert and discuss the case. Have your expert teach you the medicine. By the time you are ready to question the defendant doctor in your case, you should have an excellent understanding of the medicine and be able to discuss the medical issues with ease. If you can't, you should spend more time studying. You have to become an expert on this limited area of medicine involved in your case. That is the only way you can properly and adequately take the doctor, head on, in a battle of questions and answers. 5. Do not expect the defendant doctor to scream "OK, I give up!" during the deposition Unlike sparring in the ring (known as kumite), the doctor will often be defensive and at times may verbally attack either you or your knowledge of the medicine. When sparring in martial arts, a black belt looks to score points by hitting key vital areas of the body. An attorney who seeks to be a figurative black belt at questioning a doctor also seeks to hit key issues in the case- and looks to score those vital points as well. However, I advocate that when you get a key answer that is favorable to you, simply move on to another question. Do not thrust your hand in the air and yell, "Yes!" Do not smile that 'all-knowing' smile like you're better than everyone else in the room. Do not throw that figurative football in a hoop-roaring dance in the end zone. Instead, just move on to the next question and go after the next issue in your case. CONCLUSION Following these ideas will lead you on your quest to become a 'black belt' when questioning a doctor at their deposition.
Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer