Expert witness work is one of our most popular physician side gigs. While the majority of malpractice cases don’t reach the point where they require deposition or testimony, if they do, it can be quite stressful when you do it the first time as an expert witness if you don’t know what to expect. As such, we often see questions in our physician communities about what to do to prepare for depositions or testimonies. Below, we cover some of the most common tips given by physicians on our communities who engage in expert witness work routinely.
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Background on Physician Expert Witness Work As a Side Gig
Many physicians first foray into the side gig world starts when they are approached by a lawyer who asks them if they can review a chart on a possible or pending malpractice case. While many doctors have mixed feelings about engaging in this work because of fear of testifying against their colleagues, the role of the expert witness serves an important role for ensuring fairness within the judicial system, both for the patient AND for the physicians. Imagine if someone with no medical background were to weigh in on what the standard of care should be. As long as you stay true to your beliefs and expertise, this can be a lucrative and rewarding side gig.
Learn more about expert witness work for physicians.
Learn more about setting a fee schedule for expert witness work.
Learn more about what physician expert witnesses charge.
What is a Deposition?
While not expert witnesses will end up giving a deposition, if a malpractice suit moves forward, you may be asked to give one.
Fundamentally, a deposition is sworn testimony, similar to what you’d give if you were in a courtroom, but given outside of the courtroom prior to when the case is presented in the courtroom. Before a case goes to trial, both sides of a lawsuit are going to gather as much information as possible, and that includes getting information on you and the evidence that you are going to or have already weighed in on. This means that the opposing side will want to speak from you. While both sides are allowed to ask questions, this is really the opposing counsel’s chance to ask you questions about material gathered during discovery or prepared by you.
In a deposition, the attorneys, including the attorney that hired you as well as the opposing councils attorneys, will be present, along with someone that can administer the oath that you will take to tell the truth will be there. There may also be witnesses there. While these used to be predominantly done in person, these days many of them can be done online, which makes these slightly less of a burden than they were pre-pandemic. The deposition will be recorded, whether done electronically or in person.
You will answer questions that are asked to you. Sometimes, these questions will be submitted to you in advance and only those questions can be asked of you, but in most cases, you will be asked questions in real time and they will ask follow up questions.
Every state has slightly different rules and regulations related to how a deposition is conducted, and the attorney that hired you will likely walk you through the nuances so that you know what to expect.
How Do You Prepare for a Deposition?
As stated above, your retaining attorney’s job is to prepare you for the deposition, so hopefully they will tell you what you need to know. That said, we have the benefit of learning from each other in our physician communities, and we’ve compiled some guidelines and tips based on the guidance of the group that may or may not be told to you by your attorney.
Tips for a Physician Expert Witness Deposition
Here are tips from our physician colleagues!
Prepare for the Expert Witness Deposition
Prepare ahead of time with your attorney. Let them walk you through the current status of the case, what they’re expecting you will be asked at the deposition, tell you the information they know about the opposing attorney’s demeanor and style, etc. While they’re not allowed to coach you on what to say, they can brief you on what they expect to be asked. Also ask them any questions you may have about the process. If they don’t schedule a dedicated meeting with you to do this, ask for one.
It’s very important to review and memorize the report that you have prepared. Make sure that you not only have it memorized so that you’re consistent, but also ensure that you still believe everything is accurate. If you see any errors or have changed your mind on anything, speak with the attorney that hired you well before the deposition takes place. Assume that you will be asked to list your sources or supporting data for your opinions, so take note of relevant research, textbooks, or journal articles to back up your assertions.
Make sure that your CV is up to date and you’ve controlled your online reputation the best that you can (social media, website, etc.). The opposing counsel is going to research everything about you and try their best to discredit you, so they’re going to look you up online, look for any inconsistencies in your CV, look at your social media accounts, search the available databases such as the National Practitioner Data Bank (NPDB) or other publicly available information on your employer, publications or research you’ve participated in, any other statements you’ve made, or other lawsuits you’ve participated in. If there are things in your past, personal or professional, that you think may be used against you, give your hiring attorney a heads up so they can prepare ahead of time and aren’t caught off guard.
Read whatever you have access to about what their expert witnesses have said. If there is a report or deposition from the opposing expert, read it, and have planned responses in mind to the things that they say that contradict your opinion or report, because you’ll likely be asked about them.
Make yourself a little cheat sheet with your main talking points and relevant information or data. This will help you remember what your talking points are if you’re having trouble remembering some of the details of your report or if you get nervous or are feeling attacked.
If there is something that is a hard concept to explain, figure out how to explain it clearly in layman’s terms. Remember that the attorney or jury won’t have the medical background than you do. The more questions they have to ask to elucidate your meaning, the more opportunities they’ll have to ask questions where you could mistakenly say something in a way you didn’t intend and open up another can of worms or leave something open to interpretation that the opposing counsel could try to use or spin against you.
Logistics Before the Expert Witness Deposition
Get paid. Although you hopefully have a retainer as part of your fee schedule, payment for the deposition is usually by the opposing counsel. Therefore, protect yourself and ask for payment ahead of time. You may have to be persistent here, especially if the opposing party is from an insurance company, a federal or local entity, or otherwise has layers of bureaucracy. Send them an invoice that makes it clear that you will not testify until your retainer is paid. If they still haven’t paid in the weeks leading up to the deposition, send regular reminders. Stick firm with the refusal to testify until payment is made.
Make sure that you have professional appearing attire that conveys the impression you’d like to project. Since depositions these days are usually recorded, you’ll want to be especially mindful of appearing the same way as you would if you were testifying in court in person.
Appropriately charge your retaining attorney for your time preparing for the deposition. You should prepare as well as possible, and it’s in everyone’s best interest. Don’t shortchange the opportunity cost of your time to do so.
During the Expert Witness Deposition
Take a professional and personable attitude towards responding to questions. You are not the one on trial.
Only answer the exact question asked of you. Don’t give any more information than what is asked. No is a one word sentence and answer. Do not elaborate or go off topic. This can only hurt you.
Do not speculate. They will try to get you to concede something that you don’t need to concede or that could be spun. Stick to only talking about the facts and decline to speculate without seeing the facts in that particular scenario.
Keep your language simple. Explain everything clearly in terms that everyone will understand.
Don’t be afraid to repeat yourself. They may try and ask you the same question in multiple ways in hopes that you’ll offer them something that they can build off of. Stick to your guns.
Elaborate when necessary. They may try to pigeon hole you to a position by asking yes or no questions. In these cases, hold your ground and elaborate when needed even if they say they only want a yes or no answer.
If you aren’t sure what they are asking, ask for clarification before responding. Take your time if you need time to process the question. All of this is better than responding with information that is not relevant but then can be used against you.
Don’t respond in anger or defensively. They may try to provoke you. Just answer in a calm voice and give the facts in a simple way, much like as though you were talking to a patient or even a child.
Don’t be afraid to say that you don’t know the answer to a question or that you don’t remember something. Just say, “I don’t recall,” or “I would need to look that up or re-review it.” You can point out that much like law, medicine is a constantly evolving field and part of the practice of medicine is to look up the latest data and research.
Take breaks during the deposition, and let the attorneys know ahead of time that you will need a break every hour (or whatever interval you need). This will give you an opportunity to not just use the bathroom or have a snack or a drink of water, but also to just clear your head.
Don’t be afraid to call them out. If they start using vague language or saying that something was ‘alleged,’ if the facts are what they are, interrupt them and say, “No, this is proven.” If they use their expert witness’ report to try to discredit you, point out what their expert witness excluded. If they otherwise misrepresent a situation, point it out - don’t let it stay on the record as fact or an accepted assertion.
After the Expert Witness Deposition
Debrief with your attorney. If the case goes to trial, you may have to face the same questions or tactics. Know what you did well and where you could improve.
Review the deposition transcription to make sure what you said was accurately transcribed. If there’s an error in the actual transcription, you can request edits (though you can’t go back on or change what you said). Note that it’s a prevalent tactic for the opposing counsel to ask you to waive your rights to review the deposition transcript, which you absolutely should not do.
Get a copy of the deposition so that you can review it yourself and identify areas for improvement. This may include times when you got too defensive, where you answered with more information than you needed to, how your composure was, or otherwise.
Conclusion
While doing a deposition is always a little intimidating and/or nerve racking, it will get easier with experience. Use the tips above from your physician colleagues to help you prepare, and remember that you’re not the one on trial. Just stick to the facts and stay firm on your medical opinions. Good luck!
More Expert Witness Resources
Expert Witness Work as a Physician Overview - what expert witness work is and how to get started
Expert Witness Fee Schedule - how to structure your fee schedule, terms for retainers, and differing rates depending on the task