HOW TO HANDLE A DEPOSITION

As a pharmacist, you made an error.  The patient or the patient’s family (hopefully not the patient’s estate) have sued.  You have been served the summons and complaint.  Your lawyer (or your employer’s) has taken on the matter and it is progressing.  You have been called to make a deposition.

A deposition is a part of discovery, the legal process by which both sides build their cases.  This is done by collecting evidence through several means, usually the collection of documents and testimony by all the parties and expected witnesses.  (This means the whole case is known by both parties prior to the trial.  That is right.  The trial is mostly just a show for the jury.  If your lawyer is surprised at trial, you should be a little worried someone did not research the case well.  If your lawyer is surprised twice at trial, get another lawyer.)

A deposition is out-of-court testimony to determine several facets of the case: how well the deponent (the person testifying at the deposition) knows the case, how the deponent will look to jurors, whether the facts ascertained through documents stand up to the oral testimony, whether this testimony is or is not vital to the case, even whether the case should be pursued or dropped.

The deposition, therefore, is a means for the opposing lawyer (OL) to see what kind of case the other side has in this certain person.

A deposition is sworn testimony, just like at trial.   It is outside the courtroom, usually in a lawyer’s office conference room.   It begins with the deponent pharmacist being sworn to tell the truth.  This is done by the court reporter who will record, videotape and transcribe every word said.  The other people present in the room are all the lawyers involved in the case.  Depending on the number of parties, this can be quite a few.  I recently attended a deposition where there were eight lawyers representing seven parties.

How do you prepare for and handle a deposition?  When it takes place, here is what you should do:

  1. Tell the truth. The majority of lies told in a deposition are discovered and caught.  Having those thrown up at you during a later trial will have the jurors against you in a New York second, even if you were an extremely sympathetic person a moment before.  And lies just mean bigger awards to the injured party.  Harmful truth is easier to take than getting caught in even a small falsehood.
  2. Hesitate before answering every question, even if the question is “What is your name?” Count your fingers, count your toes, name the Seven Dwarves in your head, consider the question being asked, but hesitate, pause. This gives the opposing lawyer the knowledge that you are prepared. Also, not every question is permissible or admissible in court; it gives your attorney a chance to object.  You will end up responding to the question at the deposition.  However, your lawyer can show the objection to the judge and have it denied to the jury.
  3. Answer only the question asked and give NO more information. Make them ask. If they ask for your home address, do not add in your phone number. If they ask how many pharmacists work at your pharmacy, do not volunteer how many techs also work there. Make them ask.
  4. If you do not understand a question, ask that it be stated again or rephrased. They are going to ask you the same question many .times, rephrasing it to try and trip you up. Do not be afraid to tell them to ask again or rephrase, even more than once for the same question..
  5. If you do not remember, say that. “I do not remember.” “I do not know.” Do NOT make guesses. Most times, depositions are taken long after the incident and memories have faded.  Do NOT try to reconstruct a memory. If you are pushed to give info you are unsure of (“How many techs were on duty that day?”), make sure to say: “I do not know the answer to that, but I always have at least two techs working with me.”
  6. The attorneys questioning you are going to be as friendly as they can be. In your mind, picture them as Hitler, Attila the Hun, ISIS. They are the enemy. Being friendly is not a sign of sympathy or empathy; it is a tactic to suck you in to trust them when they have a knife ready to plunge into your trusting back. They are going to try and make you look guilty–they are not your friends.
  7. Speak confidently. Show no fear.  Pharmacists are one of the most highly respected professions and lawyers share that respect for us.  Do not go overboard and be egotistical, but even in acknowledging an error be confident.  The best of us make mistakes, and the OL knows that too.
  8. Make NO admission of guilt. Acknowledge the circumstances, acknowledge the error if you must, but do not say “I made an error” or “I made an oversight” or “I did wrong that day.”  That is for the OL to prove, not for you to provide for her.

Do not be surprised if some topics that you think are important are not covered.  At the deposition, the OL is simply measuring your take on points that are helpful to her, not necessarily the overall case.

A final note.  Do NOT attend a deposition without a lawyer.  And think twice before you go with just your employer’s attorney.  Remember, that lawyer is going to be on your side, but MORE on the side of your employer.  If there is an iota’s chance that you and your employer could become adversarial over the incident, get your own counsel and have him present.  Spend the money to protect your career.

As time goes by, the number of lawsuits against pharmacists is increasing.  This means that more and more of us are going to get to experience the judicial process and “undergo” a deposition.  With the right preparation, this ordeal—no use calling it anything else–can be less of an ordeal.

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