The defendant psychiatrist should not be tempted to “plumb the depths” of his memory in the midst of the deposition in search of a forgotten piece of information. For example, if asked whether a patient displayed a specific symptom during an appointment 4 years ago, the true answer is likely to be “not that I recall,” rather than “no.” Similar answers may be qualified with statements such as “to the best of my recollection,” or “not that I recall at this time.”

Throughout the deposition, both attorneys may periodically tell the court reporter that they wish to have a discussion that is “off the record.” Be aware, however, that nothing is off the record for the defendant psychiatrist. Even if the psychiatrist makes a statement when the court reporter has been told to stop, opposing counsel can then proceed to summarize on the record all of the psychiatrist’s statements.

If the deposition is to be videotaped, the defendant psychiatrist should approach the deposition as if it were an actual trial, because the video may actually be played for the jury should the case go to trial. Thus, it will be important to dress appropriately, speak clearly, and look directly into the camera. There should be no reluctance or embarrassment over making sure that one is videotaped in the best possible context including the use of lighting, camera angles, and background.

Some Commonly Used Tactics by Opposing Counsel

Opposing counsel may approach the deposition with a particular demeanor in an attempt to get the defendant psychiatrist to let down his guard and speak more freely. Some attorneys are taught to look for an opportunity before the deposition begins to show that they are “friendly” and not to be feared. Ordinary politeness and courtesy aside, it is important to keep in mind that discussions with opposing counsel without defense counsel present are not appropriate.

Opposing counsel may adopt the persona of the “eager student” during the deposition. This approach is designed to massage one’s narcissism, paving the way for long narratives and volunteered information. Similarly, in the role of “counselor clueless,” opposing counsel may appear so ignorant of certain facts that the defendant psychiatrist can scarcely resist jumping in to educate him. Never underestimate the medical sophistication of opposing counsel, and keep in mind that it is not your role to teach him psychiatry. If the case involves explaining key psychiatric concepts to a jury, the majority of this task will likely belong to an expert witness retained by defense counsel.

After the defendant psychiatrist gives a brief, honest answer, opposing counsel may simply sit silently as if expecting a more substantive answer. Resist the natural reflex to this “silent treatment,” which is to fill the uncomfortable silence with added responses. Be alert to a pattern of questioning designed to elicit only “yes” answers. This technique, sometimes used by salespersons, makes it more difficult to say “no” in response to an ambiguous question. Opposing counsel may misquote earlier testimony or state facts incorrectly—these errors should be pointed out. They may be an innocent mistake, or a deliberate attempt to distort testimony.

The preparation and guidelines previously mentioned (in addition to defense counsel’s advice) should be sufficient for readying oneself for a deposition. For those who feel like they might benefit from reviewing other commonly used tricky or difficult questions, other resources are available.15-16

During a full day deposition, the greatest likelihood of making mistakes begins around 4 pm (P. Resnick, personal communication, March 31, 2008). Indeed, some attorneys may reserve especially important questions for this time, hoping that the witness will give a less guarded response. The defendant psychiatrist should make sure to be well rested before the deposition and to ask for breaks during the deposition if fatigue begins to affect concentration.

Conclusions

The deposition is a standard part of the discovery process that allows both parties to gather information before trial. The defendant psychiatrist’s deposition is of utmost importance. The deposition is not merely a “dress rehearsal” or informal trial; it must be taken very seriously, because it will play a critical role in determining whether a case will go to trial, settle, or be dismissed. Good preparation involves mastering the facts of the case as well as having a clear understanding of opposing counsel’s goals and strategies.
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