The 5 “C’s” in the Big “D” – Deposition
You are an expert in your profession. As such, you will probably be required at some time during your career to testify pursuant to a deposition request. You are an expert professional, you must testify like an expert, and therefore, you must prepare like an expert.
A deposition is part of the sworn testimony within the pre-trial discovery process of a lawsuit. It most often takes place in the lawyer’s office representing the plaintiff. As the despondent, your responses are documented verbatim for the court record as testimony evidence. Even pauses when an “um” of “ah” is breathed by the despondent are captured, which could raise doubt about honesty in the answer. Although it is the judge’s decision to admit into evidence, the deposition typed by the court reporter (stenographer) can be supplemented with video and audio recording. The plaintiff’s lawyer uses video to show body language inconsistencies and nervousness, which is useful if the despondent’s answer does not support what the plaintiff’s lawyer wants to hear.
Always expect that the plaintiff’s lawyer has a theme. And that theme is the pathway to win the case for the plaintiff. As such, while establishing case facts through direct questioning of you, the plaintiff’s lawyer will try to lead you down a preferred path into a specific story, regardless of being accurate or not, and “box” you in so as to support the story. If you or your employer are a target defendant in the lawsuit, then you are heading for the “box”. The plaintiff’s lawyer will paint a picture that undermines your credibility, and surface any inaccuracies in order to gain as much support as possible for the preferred theme.
What do you do?
First, this is why it is imperative that you carry your own professional liability insurance policy, and that the policy has a generous benefit and limit such as the NASW Risk Retention Group professional liability policy that has $5,000/$35,000 Deposition coverage for you, along with a nationwide panel of specialty lawyers available to you that most insurance carriers do not have.
Second, here are some tactics to include in your defense strategy. The key point is that you must understand the theme of the case, formulate your defense, and know every allegation and any potential allegation that is targeted against you. You must know how to respond to each one in your defense.
Preparatory sessions with your lawyer are critical. Make sure that you meet with your lawyer provided by your insurance carrier face-to-face, and several times for coaching sessions, particularly if you have any vulnerability. Always bring your patient charts and records that pertain to the plaintiff. Very frequently, the plaintiff’s lawyer focuses on the patient’s chart to identify and exaggerate treatment care inconsistencies. As a matter of good clinical practice, you must make sure that you keep the patient’s chart updated during treatment. However, if that does not occur, your lawyer will develop a mitigation plan and tell you how to respond to potentially damaging questioning.
Many times the informal patient care orders and phone orders by the doctor or supervisor are complied with, but not entered into the chart until after the fact. Juries understand that filling in the blanks in paperwork, or entering late updates into the patient’s chart after care is administered do not render care as inadequate. There is always a driving force between malpractice neglect and adequate standard of care. The theme of the plaintiff’s lawyer is to drive you down the malpractice pathway in order to win the case.
Remember these 5 C’s when undergoing a deposition: Confidence, Concise, Clear, Courteous, and Careful. When undergoing a deposition, utilize these five characteristics in your testimony. Here is a short list of best practices:
- Tell the truth.
- Listen carefully, answer very carefully without impulse responses as a confident professional, and offer a clear and crisp courteous response. This is not a timed speed exam, so you set the pace and be comfortable.
- Only answer the question, do not add unnecessary detail.
- Stop talking the instant that your lawyer objects.
- Do not look at your lawyer upon each question asked because it is your testimony.
- If you do not know the answer to the question, say so.
- If you require clarification of the question, just ask.
- If you need a break, ask for a break.
There is no doubt that social work is a noble profession with implicit values of service, social justice, human dignity, integrity, and clinical competence. Despite all of the sincere devotion provided by social workers, and whether or not they are employed with an Agency or by a company, or as an individual, they must thoroughly read their own insurance policies to assess the gaps existing in their coverage. The Social Worker is a target when court litigation begins, which starts with the deposition.
Remember that the plaintiff’s lawyer has a theme to support the pathway to win the lawsuit, and you may be a target in the cross-hairs which can hurt your reputation and future practice. So carefully and thoroughly plan a deposition mitigation defense thoroughly with the lawyer provided to you by your NASW Risk Retention Group professional liability insurance carrier.
Published January 2016