JULY 1999, VOL 70, NO 1 D u f i

Do Not Let a Deposition Ruin Your Disposition

ou have been named in a lawsuit and you cept. The founders of the US legal system knew this, have to give a deposition. You have heard so they made every effort to limit subjectivity by horror stories about how difficult it is to be establishing uniform rules and laws. To symbolize involved in a legal situation. Our legal system this, the founders placed statues of a blindfolded Y has its own language and customs that you woman, who represents justice, in front of US court-

may not understand. Somehow, you are going to have houses. The blindfold represents the fact that the legal to explain and defend your actions in an environment system is blind to the different perceptions, preju- that is foreign to you. What are you going to do? dices, and viewpoints of those who come to court.

Most attorneys attempt to represent their clients in What may be viewed as fair by a Caucasian male may as fair and equitable manner as possible; however, the not be viewed that way by a Caucasian female or an legal world is different from the health care world. What African-American male. is accepted practice in the legal world is viewed nega- In our complex and diverse society, the US legal tively in the health care world. For example, our legal system can only accommodate differences by ignor- system uses an adversarial approach that is designed to ing them. The legal system’s founders knew that create tension and pit the opposing parties against each every law is unfair to someone at sometime in some other in a search for the truth. Some of the information situation-there is no way to legislate fairness. The presented in this article may seem harsh. This article is best we can do is have a standardized set of rules that not intended to discourage you everyone must follow. It is impor- about the US legal process, but to tant that you do not go into a legal betterprepare youforaninteraction A B S T R A C T situation seeking justice. Instead, with the legal system. The US legal system has a look to satisfy the rules of the law.

The key to surviving an experi- unique language and different This strategy can save you time, ence in the health law arena is to CUStOmS. The key to surviving an frustration, and maybe money. In understand the objectives surround- encounter in the health law the perioperative world, an exam- ing a lawsuit. This article discusses arena is to understand legal Ian- ple of using standardized rules is the objectives and tactics that are guage, CUStOmS, and the objec- case scheduling systems. In a case used in a lawsuit and some strategies tives surrounding a lawsuit. A scheduling system, there is an you can use to present your best deposition usually is a health established set of rules that sur- defense. It focuses on the deposition care practitioners first encounter geons must follow to schedule because that usually is a health care with testifying under oath. This cases. There are surgeons who practitioner’s first encounter with article reviews the objectives understand the system and use that testifying under oath. and tactics that are used in a understanding to its fullest advan-

lawsuit and explains some tage, but there also are surgeons UNDERSTANDING THE strategies for health care PraCti- who do not understand the system LEGAL SYSTEM tioners to use when testifying and cannot make it work for them.

The US legal system is a sys- during a deposition and present- It may not be fair that one surgeon tem of laws, not a system of jus- ing their defense. AORN J 70 uses the system to its fullest and tice. Justice is a subjective con- (July 1999) 34-42. another cannot make it work, but

W I L L I A M D U F F Y , R N

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YOU must retain

as much control as

possible to avoid portraying

yourself in a negative way.

both surgeons must follow the rules to maintain order. Another key component to understanding the

legal system is to understand the objectives of the plaintiff. For example, a plaintiff (ie, the person with the complaint) has a disagreement with you regard- ing the care he received. He believes you did not ful- fill your duty to provide him with care that a reason- able nurse would provide in a similar situation, and he wants to be compensated for that oversight.

In malpractice lawsuits, the jury decides who is right by determining which side has the preponder- ance (ie, weight) of the evidence. In general, the pre- ponderance of the evidence means the jury decides which side has more weight to their argument. Each side in a lawsuit tries to sway the jury into viewing their position more favorably than the other side. The jury uses the information presented during the law- suit to make its decision.

The facts of the case were set long ago, and as the German philosopher Friedrich Nietzsche said, “There are no facts, just interpretations.”’ Each of us can look at a situation and have a different opinion as to what happened. In a malpractice lawsuit, each side tries to convince the jury to interpret the facts in a light favorable to its side. To accomplish this, attor- neys attempt to influence the jury both consciously and subconsciously. Different tactics and legal maneuvering have become a large part of influenc- ing the jury, and lawyers have the advantage. Your job is to present your side while avoiding traps that could portray you in a negative way to the jury.

To avoid portraying yourself in a negative way, you must retain as much control as possible. Do not worry about being named in a lawsuit-in today’s society, anyone can sue another person. You are not necessarily an incompetent nurse if you are named in a lawsuit. Even the most skillful surgeons in the

world are named in lawsuits, but being named does not diminish their skill. By retaining your self-confi- dence, you will have a better chance of explaining to the jury how you met the standard of care.

DEFENDING YOURSELF IN A LAWSUIT The first step in defending yourself in a lawsuit

is to prepare for your deposition. The deposition is testimony under oath before the trial begins. Depositions occur when the attorneys for both sides are in the discovery phase-the process of uncover- ing information to use in presenting their case at the trial. Both sides go into a deposition to gain infor- mation that might help them convince the jury their argument has more weight. It is a crucial time because the testimony a witness gives in a deposition can be presented to the jury. If the witness fares poor- ly, the jury may not see the witness in the most favor- able light.

Unfortunately, witnesses are at a distinct disad- vantage in a deposition. Attorneys have had weeks to prepare their strategy. They have drafted and edited their plan of action several times. Witnesses are given no such opportunity.2 The main focus of the attorneys conducting the deposition is to transcribe the testimony so they can use it to win their case.’ Witnesses cannot win the case in the deposition; however, they can significantly hurt their case because the mistakes they make during their deposi- tion will be used by the attorneys in court! Witnesses must be prepared and have knowledge of the facts and tactics used during depositions.

PREPARING FOR A DEPOSITION The first step in preparing for a deposition is

meeting with your attorneys before the deposition. More likely than not, your attorneys have experi- ence in deposing witnesses and may have worked with the plaintiff’s attorneys before or may know the other attorney’s style. Your attorneys cannot tell you what to say, but they can suggest the types of questions you can anticipate and can warn you about the strategies the opposing counsel may use. For example, the plaintiff’s attorneys may use psycho- logical warfare tactics. Attorneys are taught that psychological warfare is an important aspect of liti- gation and that they must become adept at using psychological tactics offensively to gain an edge.’ Lawyers deliberately may upset witnesses emotion- ally to their own advantage.6 Knowing the purpose behind this type of behavior will help you retain

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control. You must not allow the plaintiff’s attorneys to distract you from testifying accurately when they use deliberate provocation.

There are other tactics the plaintiff’s attorneys may use to influence your performance. Occasionally, attorneys will use the deposition to discover what tactics cause you anxiety and then use these tactics in front of the jury at a crucial time.’ Also, attorneys may disrupt your testimony by becoming angry, star- ing at you, or moving close to you when you are giv- ing an answer that is unfavorable to the plaintiff’s side.R Discuss these tactics during your meeting with your attorneys and agree on ways you can protect yourself. Ask your attorneys what you should do when handling certain issues that may come up dur- ing the deposition. By understanding what you are allowed to do, you can optimize your performance. Most attorneys understand what they need to teach their clients about testifying during a deposition, but asking questions can clarify confusing situations.

Review the facts of the case before the deposi- tion. Reread the plaintiff’s chart and refresh your memory on why you took the actions you did. Hopefully, the documentation is complete and legi- ble. Never underestimate the importance of effective charting-documentation is your best defense. Lawyers can make witnesses look foolish during their testimony, but it is difficult to dispute effective chart- ing. Charting, along with a strong presentation of your testimony, is the best defense you have.

DEPOSITION AND TESTIMONY TIPS One of the most important things to do during a

deposition is to stay calm and in control. Emotions cloud judgment, and people tend to speak without thinking through their thoughts when they are upset or nervous. Go into the deposition with the mind-set that you provided the best care possible under the cir- cumstances. Stay focused on that fact and do not let the plaintiff’s attorneys convince you otherwise. To remain calm, point out how you practiced reasonably during your testimony.

Remember that you have to “sell” your story to the jury-not the plaintiff’s attorneys-when you tes- tify. Do not waste information trying to convince the plaintiff’s attorneys that you are right. Save your explanations for the jury. Answer the attorneys’ ques- tions with as few words as possible.Y The plaintiff’s attorneys will have time to prepare a defense if you reveal too much too soon.

The plaintiff’s attorneys will try to prompt you

Never underestimate

the importance of effective

charting-documentation

is your best defense.

to testify in a way that favors the plaintiff. You will be less likely to fall for these attempts if you are pre- pared. You still may describe events in an unfavor- able manner, but remember to stay focused and remain calm. At the end of the deposition, the plain- tiff’s attorneys may summarize your testimony in terms favorable to the plaintiff’s side.” This may be subtle, so be alert. If you agree with the attorney’s summation, he or she may use this statement to impeach your testimony at trial. During the trial, the attorney may point to your agreement with his or her summation, which may be contradictory to your tes- timony, hoping to confuse the jury regarding the truthfulness of your testimony.

Always tell the truth. If you falsify testimony in a deposition, it will most likely be discovered. There will be considerable scrutiny and so many witnesses during a trial that it is risky, not to mention unethical and illegal, to mislead the jury; however, you need to be aware of the different ways of telling the truth. For example, you could describe a surgeon as being stub- born, but you also could describe the surgeon as being determined. Both “stubborn” and “determined” may serve as an accurate description of someone who is following his or her plan of action, but the words have different connotations in our society and could have a different effect on the jury. Be aware of the effect that words with a negative connotation have, and try to use words that have a positive or neutral connotation. Do not help the plaintiff’s attorneys achieve their goal by using words that create a nega- tive impression.

Do not identify a textbook as an authority or generalize your care. By citing a textbook as an authority, you imply that you use the book to govern your practice. The plaintiff’s attorneys may have you identify a textbook as an authority so that they can

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Testifjr how you individualize

the care you p r o v i d d o not

imply nurses provide

standardizedcare.

find something in the book that you do not follow. The attorneys then will use that variance to make an impression on the jury. The plaintiff’s attorneys may convince the jury that you are not following an authority in your practice, which will lead the jury to wonder how you could meet the standard of care.

Textbooks are too generalized to govern prac- tice. Nurses use many sources of information to develop and implement care, including experience, professional journals, AORN Srandards, Re- commended Practices, and Guidelines, and hospital policies and procedures. Nurses adjust their care for each patient’s n e e d s d o not allow the plaintiff’s attorneys to give the jury the impression that nurses give standardized care. Testify how you individualize the care you provide by using multiple resources.

Ask questions to gain clarification. Never guess what an attorney means when he or she asks a ques- tion. Attorneys are trained to ask general questions that can have wide interpretations. This puts you at a disadvantage when you are explaining a complex sit- uation and are limited to answering a vague question. If you misinterpret the meaning of a question and answer inappropriately, you may convey a negative impression to the jury. You have the right to ask an attorney to clarify the question. Ask the plaintiff’s attorney to rephrase the question if you do not under- stand it or if the question is too vague.

Having the question rephrased may give you insight into what strategy the plaintiff’s attorneys are pursuing. You can suggest an avenue by saying, “I do not understand the question. Are you asking me about the preoperative visit?” This way you can pin the attorney down without answering the question. If the question asked causes you to think about more than one point of information, it is too broad, and you should ask the attorney to rephrase the question.

If you have to wonder about the answer, you do not understand the question.

Be aware of leading questions. Leading ques- tions usually are traps, and attorneys asking leading questions usually have a specific purpose in mind. For example, the plaintiff’s attorney may ask you, “You feel sorry, don’t you, for a woman in her twen- ties who must have a large facial scar for the rest of her life?” The best answer you can give is “I don’t understand the question,” because the word “sorry” implies that you feel guilty.” Another example of leading a witness is when an attorney makes a state- ment such as “Ms Jones has been in temble pain since undergoing surgery.”’2 The attorney then waits for you to agree or express sympa thy40 not com- ment because no question has been asked. Lawyers are trained to back witnesses into testimony.” After this is achieved, the attorney may discredit your tes- timony. For example, an attorney may ask you, “You don’t remember exactly what you told Mr Jones when you obtained his consent, do No one remembers “exactly” what happened-beware of words with absolute meanings. If you remember the conversation, the best answer would be “I remember what we talked about.” Also remember that attorneys are taught to attack witnesses to discredit them at the end of a deposition so they do not ruin their efforts to establish a good rapport with witnesses.15

Be comfortable with silence. Lawyers count on your nervousness and use it to get you to say more than you should. For example, the plaintiff’s attorney may stare at you after you have answered a question, implying that he or she expects you to say more. If you are nervous, you may say something that is not well thought out. This usually causes more harm than good. If you answered the question, be comfortable with the silence.

Give your attorney time to object. Do not be in a hurry to answer questions. Sometimes attorneys ask inappropriate questions, and if you answer too quickly, your attorney might not have an opportuni- ty to object to the question. Attorneys use “rhythm” questions to get you relaxed and answering quickly (eg, What is your name? Where do you live? How long have you worked at the hospital? Do you enjoy your work?). Avoid answering quickly by pausing before you answer each question; this gives your attorney a chance to react.

Your attorney can send you messages using objections without the plaintiff’s attorneys’ knowl- edge. For example, your attorney may object to a

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question about the timeline of events, saying the question is ambiguous. After the lawyers discuss the objection, you may have to answer the question. At that point, you can use your attorney’s hidden mes- sage and ask that the question be rephrased because the question is vague.I6

Ask to see documents referenced by attorneys. Do not assume documents referenced by the plain- tiff’s attorneys are accurate. Always ask to see a doc- ument before you answer questions about it. Attorneys may attempt to have you answer a ques- tion without offering to let you see the document, hoping you may testify incorrectly. This may give them the opportunity to impeach your testimony using the document at trial.” Another tactic is to ask a question about a document the attorneys pretend they have in their possession. In this situation, the attorneys hope to get information placed in the dep- osition that they do not have.

Review your testimony. You will receive a copy of your testimony after your deposition. Review it for errors-you have the right to correct mistakes. A correction after a deposition may be raised at trial and may require another deposition, but this is better than letting an error stand. Discuss this with your attorney. After the testimony is set, review your dep-

NOTES 1. Available from http://www.

quoteland.com. Accessed 24 May 1999.

2. R M Fish, M E Ehrhardt, Malpractice Depositions: Avoiding the Traps (Oradell, NJ: Medical Economics Books, 1987) vii.

3. Ibid. 4. L J C Martiniak, Deposition

Practice Handbook: How to Take and Defend Depositions (Boston: Little, Brown and Co, 1995) 8.

M Fish, Preparing for Your 5. J S Beckett, M E Ehrhardt, R

osition again before you go to trial so that your testi- mony is fresh in your mind.

THE IMPORTANCE OF DOCUMENTATION Juries tend to believe written documentation

more than oral testimony. Juries understand that peo- ple may lie during their depositions or trial testimony to protect themselves or advance their cause, so they view documentation written at the time of care more objectively. There is no substitute for accurate and complete charting. Lawyers can manipulate testimo- ny, but it is difficult to manipulate documentation that is legible, complete, and in order.

Depositions can be frightening. You automatically are on the defensive, reacting to a series of well thought- out questions. You can manage this situation success- fully if you trust your nursing skills, stay focused, and

most importantly, if you understand the process and the purpose behind the attorneys’ actions. A

Willium Durn, RN, BSN, MJ, CNOR, is director of perioperative services at Evanston (Ill) Northwestern Healthcare Corp, Evanston.

Deposition: A Comprehensive Guide to the Deposition Process for Physicians and Other Professionals, second ed (Los Angeles: PMIC, 1994) 95.

6. Ibid. 7. Ibid, 108. 8. Ibid, 110. 9. Ibid.

10. R E Oliphant, Deposition Tactics and Considerations, second ed (Notre Dame, Ind National Institute for Trial Advocacy, 1988) 93.

11. Ehrhardt, Fish, Malpracfice

Depositions: Avoiding the Traps, 69. 12. Ibid. 13. Martiniak, Deposition Practice

Handbook: How to Take and Defend Depositions, 49.

14. Ehrhardt, Fish, Malpractice Depositions: Avoiding the Traps, 69.

15. Martiniak, Deposition Practice Handbook: How to Take and Defend Depositions, 6.

16. Ehrhardt, Fish, Malpractice Depositions: Avoiding the Traps, 10.

17. H L Hecht, Effective Depositions (Chicago: American Bar Association, 1997) 155.

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