At a later pre-deposition conference, defense counsel may help by conducting a “mock” deposition that focuses on difficult or anticipated questions. This is a good opportunity to master some of the anxiety surrounding the deposition and to improve one’s effectiveness as a witness. The psychiatrist may wish to go over his or her curriculum vitae with defense counsel and check it for mistakes or other areas that may attract problematic deposition questions. The defendant psychiatrist should be fully aware that attorneys are taught to research doctors’ online profiles,¹³ and it is important to alert defense counsel to any Web sites that are professionally relevant. Table 1 gives a checklist for deposition preparation.

 

Table 1	Deposition Preparation
Thoroughly review records Master the case—memorize key names, dates, facts Meet with defense attorney at least twice –Get details—location, who will be present, expected duration –What documents to bring –Style, personality of opposing counsel –Prepare for difficult questions –Consider having a “mock deposition” Double-check curriculum vitae for accuracy and updating Be well rested

 

General Guidelines

Answers to deposition questions should be kept brief and clear. The deposition is a fact-finding mission for opposing counsel who may ask broad questions, hoping to encourage rambling answers that might reveal new facts. Brief answers provide the least information to opposing counsel and are best under most circumstances. There may be exceptions to this general principle, but these will almost invariably be the result of specific instruction from defense counsel. The defendant psychiatrist is under no obligation to make opposing counsel’s job easier, and volunteering additional information may open up superfluous, yet problematic areas of questioning.

Regardless of opposing counsel’s approach and questioning style, a calm equanimity should be maintained. It is critical to maintain one’s composure and resist the urge to counterattack in a hostile manner. In all circumstances, the psychiatrist should strive for a demeanor of dignified confidence and humility. Opposing counsel gains a distinct advantage when the defendant psychiatrist loses composure or becomes arrogant. Indeed, experienced plaintiff’s attorneys may be testing for precisely such a reaction with the hope that the psychiatrist will “demonstrate his arrogance” during the deposition, or later on the witness stand.¹⁰

Another key principle is to listen carefully to each question asked during the deposition. It is helpful to pause for a moment after the question is asked to give it careful consideration. This also allows time for other attorneys to object.¹⁴ Listening carefully to defense counsel’s objection may reveal a clue about the best response to the question. The defendant psychiatrist should refrain from answering any questions when advised to do so by defense counsel.

Table 2 provides some general deposition guidelines for the defendant psychiatrist.

While there is no rule against opposing counsel asking the witness to speculate, the defendant psychiatrist should generally avoid doing so. The deponent is required to tell the truth —not speculate or volunteer guesses. The best way to cause a jury to disbelieve your testimony is to make inaccurate or unfounded statements, which opposing counsel will surely point out at trial. If compelled to make a “guesstimate,” qualify answers by saying “approximately” or “to the best of my recollection.” Avoid the use of adjectives and superlatives, such as “never” and “always.” These qualifiers may also be used to distort or mischaracterize testimony at trial.

Table 2

General Deposition Guidelines

Always tell the truth Actively listen to the question Pause before answering Never lose composure—keep your cool Answer only the question asked Stop speaking if counsel makes an objection—listen carefully Do not volunteer information—avoid long narratives Do not speculate or guess Avoid absolutes such as “never” or “always” Avoid jokes, sarcasm, and edgy comments Ask for breaks if needed—do not become inattentive Carefully examine documents, reports, etc, before answering questions about them Ask for clarification of confusing questions Nothing is “off the record”

 

Questions that are not understood should not be answered. There should be no hesitation to ask for clarification of confusing or convoluted questions. If opposing counsel begins asking questions based on a particular document, request to review the document to make sure that opposing counsel has not misunderstood the document’s contents or quoted it out of context.