Preparing a Medical Witness for Deposition and Trial: A Different Approach

Whatever the reason, the de-facto preparation period — one hour before the deposition — became the norm. Health care providers were essentially treated like any other party in any other personal injury matter, and witness preparation in brain-damaged infant matters was treated the same as a rear-end hit with soft tissue injuries. Obviously, in those situations where it was known that the witness would likely be a poor one, additional preparation was arranged, often with a professional witness preparation specialist; but even then, the typical practice was for the consultant to have a single meeting with the witness. And the typical attorney practice was to have one brief preparation period before or on the day of the deposition.

While the deposition testimony usually does not win the case, in a medical negligence matter, it can definitely lose it. In this age of the National Practitioner's Databank (the Databank) and the mandatory reporting of any settlement or verdict to the State Board of Medical Examiners, this relic — the single witness preparation session — of a bygone era needs to be dispatched to the museum of ancient trial practice. The stakes for a physician today are higher than they have ever been. It is not an infrequent occurrence that any report to the Databank gets a review by both the State Board of Medical Examiners and any health insurer on whose panel the provider has privileges. This could lead to adverse licensure actions or even debarring from the insurance panels, removing a significant income source. Our clients deserve better.