Only about 5% of lawsuits actually go to trial. The rest are either settled by agreement of the parties or dismissed on some technical basis before trial. As a result, a paramedic is more likely to affect the outcome of his or her case–whether it is settled for a small or a large sum, or possibly dismissed upon motion–by the way he or she performs during a deposition than testifying at trial. If the paramedic holds up well during the pretrial deposition, the case is more likely to be settled for a small amount; if the paramedic performs poorly in the deposition, get out your checkbook–settlement is not going to be cheap. Accordingly, it is critical that your paramedic be well prepared before giving a deposition.
A deposition is a judicial proceeding intended to allow lawyers to obtain witness testimony before trial to gather information and to help prepare and evaluate their cases. If the plaintiff’s attorney in an ambulance accident or paramedic malpractice case takes the deposition of your paramedic, he is not on an innocent fact-finding mission; he is trying to get admissions from the paramedic that will strengthen his case against your EMS service.
The number one rule for being a good deposition witness is to always tell the truth. But there are two ways to tell the truth–carefully and carelessly. Unfortunately, I have seen many witnesses who were genuinely good, honest people, but they were careless in their depositions–they meant only to tell the truth, but were careless in how they did so–and their testimony came back to haunt them (or their employer).
Some simple rules can help your paramedic tell the truth carefully rather than carelessly:
1. Listen closely to the question; don’t talk while the questioning lawyer is talking.
2. Make sure you understand the question; lawyers in real life are not nearly as witty or precise in their questioning as lawyers on television shows–they often ask vague, disjointed, rambling questions.
3. If the lawyer uses a term you don’t understand, or you aren’t sure that the lawyer attaches the same meaning to the term as you do, ask for clarification. If you don’t ask for clarification, the lawyer will assume that you understand the question and are trying to answer it truthfully.
4. Don’t guess or speculate. This includes not guessing or speculating as to what other people know or think; you are a witness, not a mind-reader. If you don’t know the answer to a question, the proper response is “I don’t know.”
5. Answer the question that was asked, and only that question. Don’t volunteer extraneous information that is not responsive, even if you think it is helpful to your case.
6. Formulate your answer in your head before you open your mouth to speak. This will help you give a more precise, succinct answer that is responsive to the question without including a bunch of extra, non-responsive information.
7. If the question can be fairly answered with a simple “yes” or “no” without explanation, do so. However, if a simple “yes” or “no” by itself might be misleading, leave the wrong impression, or be less than the complete truth, in most jurisdictions you have the right to explain your answer–e.g., “Yes, but you also have to keep in mind that…..”
8. Be aware that lawyers sometimes mischaracterize your response to a prior question when they transition to a subsequent question. Some lawyers do this on purpose; others probably do it unintentionally because they simply aren’t listening closely to the witness’s answers and hear what they want to hear rather than what the witness is actually saying. Either way, don’t let the questioning attorney get away with mischaracterizing your prior testimony.
9. Before you answer any questions about a document, take time to review the document. If the questioning attorney lays a document in front of you and starts asking questions, ask if you can take a minute to review the document before answering questions about it. Review the whole document; make note of the date, who prepared the document, who received the document; keep in mind that, even if the lawyer’s question is focused on one particular section of the document, there might be information in a totally different section of the document that you should incorporate into your answer.
10. Be firm but polite. Don’t be intimidated into changing your testimony. Don’t lose your composure. If there is any arguing to be done, let your lawyer do it.
These guidelines will be helpful, but they should not be considered a substitute for careful deposition preparation with your attorney. Depositions are very important; a good deposition performance can affect the settlement value of a case tremendously. Accordingly, it is worth spending as much time as necessary (anywhere from a couple of hours to a full day depending on the complexity of the case) to make sure the paramedic is ready for his or her deposition.