Your report is done. A few weeks later, the attorney calls: "Opposing counsel wants to take your deposition."
You have handled codes and crashing patients. Yet a lawyer testing your opinions feels different.
A deposition is a skill, and like any clinical skill, it gets easier with practice.
What a Deposition Is
A deposition is sworn testimony taken outside the courtroom. You answer questions under oath, a court reporter types every word, and sometimes it is video recorded.
The attorney who did not hire you asks most of the questions, to learn your opinions, find weak spots, and lock in your answers before trial.
In federal cases, the rules for depositions are in Federal Rule of Civil Procedure 30. Unless the parties agree or the court orders otherwise, it limits a deposition to one day of 7 hours. State courts have their own rules, so ask the attorney who retained you what applies.
Your deposition also matters because of how courts judge expert testimony. Under Federal Rule of Evidence 702, expert opinion must rest on sufficient facts or data and reliable methods, reliably applied to the case. Your deposition often tests exactly that.
How to Prepare
Know your report cold
Reread your report until you can explain every opinion in plain words. Know what each one is based on, and where in the record you found it.
If you notice an error, tell the retaining attorney before the deposition.
Go back to the records
Review the key records again: the timeline, the orders, the notes, the flowsheets, the medication record. Know the dates and times that matter most to your opinions.
Bring only what the attorney tells you to bring. The other side may look at anything you bring.
Meet with retaining counsel
Ask for a prep meeting. Good questions to ask:
- What are the main issues the other side will press?
- What documents have they seen from me, including my CV and invoices?
- Should I ask to read and sign the transcript?
They cannot tell you what to say, but they can walk you through the process.
Common Cross-Exam Tactics
The learned treatise
Counsel may hold up a textbook, guideline or journal article and ask, "Do you agree this is authoritative?"
Be careful with that word. Agreeing that a source is authoritative can open the door to having every line of it read against you. A safer, honest answer is often that you find it useful, and that you would need to see the specific passage in context before agreeing with it.
Hypotheticals
"Assume the patient's heart rate was 140. Would that change your opinion?"
Listen for facts that are not in the record. It is fine to say, "That is not what the records show, but if those were the facts..." and then answer carefully. Do not let a made-up scenario quietly replace the real one.
Prior testimony and writings
Expect questions about past depositions, articles and social media posts. If your view changed, say so and explain why.
Questions about fees
"How much are you being paid for your opinion?"
You are paid for your time, not your opinion. Know your rates and the rough amount you have billed in the case. Answer plainly and without apology.
How to Answer
Pause before every answer
Let the full question land. It gives you time to think and gives your attorney a chance to object. After an objection, you usually still answer unless told not to.
Answer only the question asked
If the question can be answered with yes or no, do that. Do not volunteer extra details or fill silence.
"I don't know" is okay
"I don't know" and "I don't recall" are honest answers when they are true. Guessing is not. If you need a document to answer, ask to see it.
Stay in your own profession's lane
You testify to the standard of care for your own profession, based on your own training and experience.
Picture a perfusionist asked, "Should the surgeon have gone back on bypass sooner?" A good answer: "That is a surgical decision. I can speak to what the perfusion team did and what the circuit data shows."
Or a pharmacist asked whether the nurse should have assessed the patient more often. A good answer: "Nursing assessment frequency is outside my scope. I can speak to the dosing and the pharmacy verification process."
Staying in your lane makes the rest of your testimony believable.
Stay calm and kind
Friendly or sharp, treat every attorney the same: polite, steady and brief. Never argue.
What Happens After
When the deposition ends, the court reporter prepares the transcript. Under Federal Rule 30(e), if review is requested before the deposition is completed, you get 30 days after being told the transcript is available to review it and sign a statement listing any changes and the reasons for them. This is often called the errata sheet.
Use it for real errors, such as a misspelled drug name or a wrong number the reporter heard. Do not use it to change your testimony because you wish you had said it differently. Big changes can be pointed out and questioned later.
Then add the case to your testimony list.
The Bottom Line
Your first deposition is a test of preparation, not personality. Know your report, know the records, listen to each question, and answer only what was asked, from inside your own profession.
Do that, and you will walk out knowing you told the truth clearly.
This article is for educational purposes only and is not legal advice. Rules for depositions and expert testimony vary by court and state. Always follow the guidance of the attorney who retained you. No patient information is used in this article; all examples are made up.
Recommended Courses
- The Prepared Expert by Heather Hansen, Trial Lawyer
- BFB 2.0 by Dr. Amy Fogelman
- Expert Witness Courses page
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