4. Deposition of Health Care Professionals and Medical Experts:

A) Often the doctor is not as well prepared for a deposition as at trial, thereby enhancing the attorney's prospect of successfully attaining the goals of a successful deposition.

B) Lawyers will consider the following to be points in favor of taking a deposition and goals to reach in taking the deposition:

1. To help evaluate the strengths and weaknesses of the case
2. To prevent surprises at trial
3. To pin down testimony on particular points
4. To elicit favorable admissions
5. To determine whether recognize standard tests/procedures were conducted
6. To expose biases

C) Opposing counsel will consider the following to be reasons NOT to take a doctor's deposition:

1. It forces the witness to think and prepare
2. It perpetuates the testimony of the witness for use at trial when the witness might otherwise be unavailable later
3. It exposes to opposing counsel and the witness the thrust of anticipated trial cross-examination, thereby allowing for more effective pre-trial preparation by the witness
4. It provides the witness with a practice session of questioning and a transcript to review before testifying at trial
5. It exposes weaknesses which can be remedied for trial
6. The cost of the deposition

D) Often a deposition will be scheduled by a notice accompanied by a written request to produce the following documents:

1. Curriculum vitae
2. All documents relied on in forming opinions
3. All documents generated regarding examination, treatment and care
4. All materials published by the expert
5. All demonstrative evidence [s]he might use to explain testimony
6. All transcripts of prior testimony taken
7. All ledgers/time records regarding his/her retention by the attorney in the case

E) The examining attorney will generally cover the following areas in a deposition:

1. Who the witness spoke with and what documents (s]he reviewed to prepare for the deposition [to refresh recollection]
2. The medical history as the witness knows it [including birth defects, prior accidents and illnesses, predispositions)
3. Details obtained about the plaintiff's claimed injuries
4. Description of the treatment, advice and instructions given the plaintiff
5. Description of any symptoms of emotional distress
6. Information about any subsequent accidents, injuries, or illnesses and their impact upon the claim
7. The amount and reason for medical expenses

F) Plaintiff's attorney ideally does the following in advance preparation for the witness's deposition:

1. Describes the deposition process, the customary deposition instructions, and the potential of videotape to insure preservation of the testimony if [s]he is later unavailable for trial
2. Explains its purpose and the consequences to the plaintiff's case
3. Reviews with the witness all records, including tests and x-rays
4. Discusses any weaknesses in the records and the anticipated testimony
5. Asks if the witness is familiar with opposing counsel
6. Discusses the style and tactics of opposing counsel
7. Reviews for consistency the witness prior writings and deposition or trial testimony in this and other cases
8. Reviews the opinions and bases f or them as to the following:
1. Diagnoses
2. Dedical causation
3. Prognoses
4. Recommendations for future treatment
5. Anticipated future limitations of the patient
9. Makes sure the witness appreciates that the correct legal terminology of "reasonable medical certainty" refers to probability, not scientific certainty as distinguished from "possible"
10. Discusses the theories of opposing counsel regarding medical causation and the injuries
11. Warns the witness NOT to go beyond his/her expertise
12. Explains how to respond to questions regarding compensation and that the law, including statutes, entitle the expert witness to "reasonable compensation" for time to testify both at deposition and trial, time to travel to and from, court, and the cost of remaining at the locale of the trial when subpoenaed
13. Provides for review all available, relevant and necessary information if the witness is to be asked to serve as an expert, including:
1. All medical records and deposition transcripts of other doctors involved, includes pre-trauma records
2. Deposition transcripts of the parties and witnesses involved with knowledge of the cause and nature of the injuries
3. Deposition transcripts of the opposition's experts, if available, to anticipate cross-examination
14. Provides the witness copies of jury instructions such as those on assessing credibility, evaluating expert testimony, and the use of hypothetical questions (see BAJI 2.20, 2.40 - 2.42]
15. Warns the witness that cross-examination will often seek to elicit the following admissions:
1. The existence of many "possible" causes for injuries so as to move the witness from a "Probable" causal relationship to only a "possible" one
2. [S]he is not an expert in a certain area
3. That others are more qualified
4. That [s]he would defer to another expert

G) Deposition fees (per CCP 2034(i) (2) in California):

1. The designated or retained expert cannot charge an hourly fee to opposing counsel that exceeds the sum charged the retaining party.
1. "A party desiring to depose any expert ... or treating physician who is to be asked to express an opinion during a deposition, shall pay the reasonable and customary hourly or daily fee for the actual time consumed in the examination..."
2. The fee is payable in advance of commencement of the deposition and, if it runs overtime, the balance is payable within five days of receipt of an itemized statement.
2. Travel time, travel expenses and preparation time are not chargeable to the deposing party.
3. If a witness is not designated as an expert, then the request during deposition for one (1) opinion is enough to trigger the right to expert fees. But testimony regarding observed symptoms, progress notes and conversations with plaintiff do not trigger fees.
4. An attorney designating a witness as an expert must sign a declaration under penalty of perjury stating:
1. You have agreed to testify at trial
2. You will be sufficiently familiar with the case to submit to a meaningful deposition
3. In brief narrative form, your qualifications
4. In brief narrative form, the substance of your anticipated testimony
5. Your hourly and daily deposition fee

H) Opposing counsel can ask about all information considered and reviewed by the witness:

1. Including cover letters
2. Including conferences held (even during deposition or trial)
1. Except communications containing the attorney's "work product": conclusions, opinions, legal theories
2. Except objective material [e.g., tests] used to prepare for litigation, unless good cause is shown for its revelation

I) Outline of Deposition Enquiry

1. Background and qualifications:
1. Name, address, age
2. Educational background [e.g., chiropractic college, medical school, internship, residency]
3. Special training in field of expertise (fellowships, military]
4. Teaching experience
5. Employment background
6. Papers, books and articles published, or reported lectures on material subjects
7. Memberships in professional societies and organizations
8. Hospital staff memberships [durations, offices held; regarding hospital privileges and surgical privileges - ask if ever been challenged or revoked]
9. Honors, prizes, or special recognition
10. Specialty board certification obtained, and whether ever revoked or suspended
11. Licensed by any governmental authority to practice in field, and whether ever suspended
12. Trade or professional journals subscribed to or read
13. Name of standard text or references used in expert's area of expertise, including those in his or her own library
14. Previous testimony of expert [deposition, arbitration, trial]
15. Frequency of testimony and breakdown of percentage of time testifying for the defense as opposed to the plaintiff
16. Amount of time devoted to performance of medical legal examinations
17. Financial arrangements for appearing as an expert witness
18. Whether doctor handles/handled the subject procedure
19. Where do you get your patient population?
20. How often were you the primary doctor to come up with this diagnosis?
2. Facts of retention as expert:
1. Date first retained
2. What expert was requested to do
3. What information was supplied to expert and when it was supplied
4. What objects or documents were supplied
5. Time spent working on case
3. Medical history - what your understanding of facts?
1. Who obtained it
2. Procedure used to elicit and record
3. Significance of medical history
4. Symptoms elicited and their importance
5. Circumstances of the injury-producing incident
6. Medical/dental/chiropractic history before incident
4. Physical examination and findings
1. Physical appearance and mental status of examinee
2. Length of examination and identity of all persons present
3. Description and purpose of each clinical test or manipulation, the findings of each, and the significance of the findings
4. Description and purpose of each special diagnostic procedure [e.g., x-rays, lab tests], the findings of each, and the significance of the findings
5. Description of all other findings made, and their significance
6. Interpretation of each illegible entry in the medical records
5. Opinions
1. Each opinion or conclusion reached:
1. Diagnosis - physician's opinion regarding the nature, extent, origin, and effect of injuries
2. Medical causation - physician's opinion of the relationship between the diagnosis and the injuries suffered in the incident
3. Prognosis - physician's opinion on the future effect of plaintiff's diagnosed injuries, e.g., permanency, susceptibility to future problems
4. Recommendations regarding future treatment, e.g., future physical therapy, future surgery

2. The basis for each opinion and conclusion, e.g., physician's own experience and observations, medical text, reports of other physicians, test results, hospital records, statements of the patient. Many experienced attorneys also delve into the "state of mind" of the expert to explore his or her reasoning rather than accepting it at face value. This helps pin down the expert's reasoning process and may help impeach the opinion. Certain questions in this area will be helpful whether the answer is "yes" or "no. For example, one might want to inquire about whether the expert "considered" certain facts. An expert later may be criticized for not considering certain facts.

3. Is there a recognized contrary school of thought? Who are the advocates thereof?
J) Procedural Techniques to Maximize the Quality of Deposition Testimony
1. Anticipate areas of enquiry
2. Only answer the questions posed
3. Respond directly with active verbs rather than passive
4. Qualify answers only as necessary
5. It is better to understate testimony to avoid engendering the distrust of the trier of fact
6. Avoid coming across as an advocate
7. Avoid red-flagging problem areas
8. Avoid reaching conclusions opposite those previously expressed
9. Stay within your area of qualification: only reference that outside your field which has been shared with you by other "team members" and which you have considered
10. Have ready for reference:
1. chart notes
2. curriculum vitae
3. billing records
11. Do not engage in any conferences with defense attorneys regarding your patient Outside the presence of plaintiff's attorney