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This Doctor Knew What My First Question Was Going to Be When I Questioned Him During His Pretrial Deposition. How Did He Know?

I couldn't believe it.
He was prepared.
He immediately answered, without hesitation, my very first question.

That rarely happens.
I didn't know it then, but I found out later that he'd been prepared for my first question.

Let me step back for a moment and explain what a deposition is.
It's nothing more than a question and answer session.
I ask questions and the doctor whom you sued is required to answer my questions.

This questioning takes place in the doctors' attorney's office.
In his conference room.
There's no judge there.

There's no jury there.
But there is a court stenographer there to record all of my questions and all of the doctors' answers.
The attorney representing the doctor is there.

Of course I'm also there asking the questions.

This question and answer process is known legally as a deposition.
Lawyers also call it an examination before trial.
The answers that the doctor gives represents his sworn testimony.

The answers carry the same exact weight as if he's testifying at trial in front of a judge and jury.

But I have a little secret to share with you...
Lawyers who question doctors in medical malpractice cases typically do it the same way every single time.
They like to start out by asking the doctor about his credentials.

Doctor, where did you go to medical school?
Where did you do your internship?
Where and when did you do your residency training?

Did you do a fellowship? If so, where and when?
Are you licensed to practice medicine in New York?
Has your license ever been suspended or revoked?

Are you board certified?
In what field of medicine?
When did you become board certified?

Do you have any publications to your name?
Have you authored any textbooks in your field of medicine?
Have you given any lectures or presentations to national medical organizations?

There's more to ask, but you get the idea.

Why do lawyers start out asking these same boring questions?
Because they've been taught to do that by lawyers who trained them.
The doctor they're questioning has been prepared by his lawyer that this is what the plaintiff's lawyer is going to ask first.

This way the doctor is prepared for these questions.

Unlike other lawyers, I NEVER start a doctor's deposition that way.
There's no need to.
I already know what the doctor's credentials are.

I've already done my research to determine where he's licensed, if he's board certified, where he trained and if he's ever been sued before. I don't need to ask those questions at the beginning. I'll save that for the end.

Instead, I like to shock the doctor.
Not literally, but figuratively.
I also like to shock the attorney.

"What do you mean by shock?"
Simple.
I like to do something that neither one is expecting.

"Such as?" you ask.
Such as asking the most important question in the entire case as my very first question.
The doctor typically is NOT expecting that type of question as my first question.

Instead, he's likely expecting me to ask where he went to medical school and did his training.
Sorry, but that's not what I do.
Let me give you an example.

Let's say it's a case of a surgeon operating on the wrong side of the patient's brain.
My VERY FIRST question to the doctor would be something like this...
"Good morning Doctor. Can you tell me WHY you operated on the wrong side of the patient's brain?"

An attorney who is not expecting such a question to start will likely yell out "Objection! You can't ask that yet! You need to lay a foundation to establish that (1) there was a doctor-patient relationship, (2) that my client saw your client on that day and (3) that my client was the one who actually operated on your client."

In response I might say "Can you show me where in the Civil Practice Law & Rules (CPLR) it says I have to do that?" The reply is often stuttering, blurting out more objections and a request to rephrase my question.

The reality is that there is no guideline about how these questions should be asked.
There is no right way or wrong way to start a deposition.
Many lawyers like to give the witness preliminary instructions before they ever ask a single question.

I find that to be a total waste of time.
Why?
Because the defense lawyer has already explained those instructions to the witness.

"Doctor, you have to wait until I finish my questions before you answer, Ok?"
Really?
I need to waste my time asking that question? I don't think so.

Instead, I want an immediate answer to the key issues in the case.

"Doctor would you agree that operating on the wrong side of the brain would be a clear violation from the basic standard of care?"

"Doctor, tell me why you operated on the wrong side of the brain in this case..."

At the very beginning of the deposition, the doctor is not expecting this as the first question.
Except for today's deposition.
He knew.

He knew what to expect.
He knew I'd be asking the key question.
It surprised me that he knew.

He gave me a good answer to my question.
So I asked him another shocker-style question.
He wasn't phased.

That surprised me.
I thought he'd be a little surprised by my immediate question.
He wasn't.

I also knew something was awry when the doctor's attorney didn't object to my question.
It wasn't until I had finished questioning the doctor did I learn how and why this doctor was prepared for my first question.
You see, after the deposition was over, the defense attorney asked if he could speak to me in private.

I agreed.
We chatted about the merits of the case for a few minutes and then he shared something unexpected with me.
It turns out that I was the one who was shocked.

Turns out that 15 years ago when this defense lawyer just started at this law firm and started representing doctors in medical malpractice cases, he had a deposition with me. Apparently I was at his office to question a doctor he represented.

He was shocked and amazed at how I started questioning the doctor.
I asked the doctor the key question as my very first question.
He thought that was remarkable.

He thought that was innovative.
In fact, he shared with me that he thought this was a brilliant way to start a deposition.
I felt humbled and just a little awkward that I couldn't remember the case he was describing.

He also shared with me that since that time, he has always prepared his doctor clients to be questioned that way for their deposition. He warns them that other attorneys are likely to pick on this tactic and use it to their advantage.

The funny thing was that not one single attorney since that time had used this technique when questioning a doctor at deposition...until today.

This defense attorney knew I'd be coming in to question this doctor.
He knew I was handling this case where he represented this physician.
He knew that there was a very good chance I'd start my questioning with the key issue in this case.

He was right.
I did.
That's how his client knew what to expect.

Did it hurt me that he was prepared for my question?
Not at all.
I just wasn't able to take advantage of the element of surprise.

In the past, this technique has served me well and gotten doctors to say things that may have been detrimental to their case, when they otherwise would have been a bit more careful if I asked the same questions later on in the deposition.

I left today's deposition surprised.
Surprised that this defense attorney had remembered this tactic and now anticipated it, prepared for it and minimized the risk to his client when I used it.

To learn more about deposition strategies, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer