“You cannot win a deposition, but you can certainly lose one”
For those who have not been involved in one, a typical deposition follows a structured format. It begins at the agreed time with background questions about your education, training, and professional experience, essentially walking through your CV. Once that is completed, the questioning attorney moves into the facts of the case itself. Medical records are usually available to you during the deposition, and certain pages may be marked as exhibits for reference as questions are asked.
During questioning, your attorney is present and may object to certain questions. Most objections are made for the record and do not prevent you from answering unless your attorney specifically instructs you not to, such as in cases involving attorney-client privilege. After the opposing attorney finishes their questioning, your own attorney may ask follow-up questions. These are usually intended to clarify, correct, or complete your testimony so that the record is accurate and not misleading.
Depositions can last anywhere from a few hours to a full day, and in more complex medical malpractice cases they may extend over multiple days. In addition to treating physicians, depositions may also be taken from patients, family members, nurses, and expert witnesses, all of whom contribute to the factual and medical narrative of the case.
As many lawyers say, you cannot win a deposition, but you can certainly lose one. Because many malpractice cases settle before ever reaching trial, the deposition is often one of the last and most important opportunities for a physician to fully explain their care under oath. Despite this importance, preparation is often limited, sometimes involving only a brief meeting with legal counsel, which contributes to how easily the process can be underestimated.
Although the setting is informal in appearance, it carries full legal weight. Depositions usually take place in a law office, with no judge present. Attorneys for both sides are there, along with a court reporter who transcribes everything said, and sometimes a video recording is also made. Breaks are allowed, and the schedule is often flexible, but the testimony itself is sworn and treated as evidence.
The purpose of a deposition is for the opposing side to gather information that can later be used in court, including for impeachment. For that reason, questions may sometimes feel repetitive, leading, or framed in a way that suggests a particular narrative. It is not uncommon to feel that questions are ambiguous or that they are attempting to put words in your mouth. The best way to respond is to remain precise and factual, answering only the question asked, without volunteering unnecessary detail or expanding into narrative. The goal is not to withhold information, but to avoid giving interpretations or narratives that can be taken out of context later.
For example, if asked how many patients you were caring for at the same time, a simple and accurate answer such as “I don’t recall the exact number” is appropriate when that is true. Adding general statements about how busy the department usually was may seem harmless in the moment, but it can sometimes be used to build a broader narrative about workload or care, which may not reflect the specific circumstances of the case.
It is also important to pay attention to your attorney’s objections. While they are often procedural, repeated objections can sometimes signal that a question is problematic in form or that your answer may be drifting into areas that could be harmful if framed a certain way. In those moments, it may be useful to pause mentally and ensure you are answering only what is being asked—nothing more and nothing less.
Ambiguous questions should be handled carefully. Terms like “similar surgeries,” “promptly,” or “a lot” can have multiple meanings, and it is entirely appropriate to ask for clarification rather than guess. If you do not remember something, it is acceptable to say so, but that answer should be used carefully and honestly, as overuse can raise credibility concerns if it conflicts with available records. Similarly, if something is not documented but reflects your standard practice, it should be explained cautiously and grounded in what you actually recall rather than assumed routine alone.
Another strategy the plaintiff may use is binary questioning.
For example:
“So you agree that was inappropriate care, yes or no?”
In cases like this, it is important for the physician to state that the question cannot be accurately answered in that form and to provide context.
Be also aware of hypotheticals. For example:
“You agree that if you had consulted surgery earlier, the outcome would have been different.”
These types of questions require attention and should be redirected to what was known at the time of care, rather than retrospective speculation.
Most importantly, tone matters as much as content. Even if the process feels adversarial or stressful, it is essential to remain calm, professional, and composed. Depositions are often recorded, and portions may later be shown to a jury. Displays of frustration, defensiveness, or arrogance can have a greater impact than the substance of the testimony itself. Even pauses and hesitation may be interpreted later, especially in video-recorded depositions.
Finally, consistency is critical. Because depositions are given under oath, any testimony provided must align with what is later stated in court. Inconsistencies, even if unintentional, can be used to challenge credibility.
So when the day comes, put on your best suit, take a deep breath, and enter the room with respect for the process and readiness to answer each question to the best of your recollection.
A.Kosteli, MD, PhD