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

With the stakes so high, we believe in and advocate for a new standard of practice for high risk/high exposure cases — more meetings of shorter lengths over the weeks leading up to the deposition. There are myriad reasons why this is better practice, provides more lasting direction to the witness, and will lead to the best result at deposition and trial. Below, we outline some of the science and research that supports this new paradigm.

Cramming: A Dubious Approach

Certainly, we all remember when we crammed the night before an exam or pulled an all-nighter to write a paper. We suspect this was routine for many of us in college or even law school. If we did well on the exam, it might serve to confirm or reinforce the belief that cramming is a viable strategy for studying. Well, it's not, and there's a lot of research and science to back that up, but it's done all the time in schools.

The practice of exam cramming has clearly slipped into the realm of witness preparation. This is a bad sign for any witness, let alone an important one. Testifying is completely different from taking an exam. Testifying is less about what we know than how we tell a story, project our character or respond to hostile questions. Our study habits at school are not relevant to being “tested” in deposition or trial. It's a terrible mistake to assume that we can prepare a witness in the same way we prepare for an exam. Imagine a football team getting ready for a big game by watching a video of the opponent the day before, and never taking to the field to practice.

There are plenty of lawyers who hold off preparing their clients until a week, a day or even an hour before their testimony, and then they cram all the preparation into a single meeting. There are many who wait until the day of the testimony. Now, if the testimony is straight-forward and the witness poised, this practice may do no harm, but it's dangerous and reckless when it comes to an inexperienced client who faces a tough examination in a big case. Even with an experienced witness, this is a dangerous practice that, when completed soon before the deposition, does not provide sufficient time to remedy any discovered difficulties.

The timeline for the preparation sessions should vary based upon the experience the witness has at giving testimony, the volume of material to be covered, and the type of witness. Obviously, a fact witness with little exposure will require less intensive preparation than the primary or target defendant who treated the patient over multiple years. Further, a witness who has significant experience as a testifying expert would likely require less preparation than a novice. However, the anticipated preparation should be considered and discussed from the beginning of the matter so that the appropriate time can be factored into the discovery period.

Even if you give a witness brilliant instructions, the lessons are not sustainable when given in one, single session. There is no deep learning. While it is possible it will do no harm, do we want to take that chance with so much on the line? Even if it seems a little repetitive, it is important to regularly reinforce the subjects of the testimony so it is ingrained, and the information expressed with confidence. There are at least three scientific reasons supporting multiple preparatory sessions — forgetting, chunking and spacing.

Forgetting

You don't need to be told that we forget a lot. What we may not fully appreciate is how much and how quickly it happens The Ebbinghaus Curve (which has been around since 1885 when Hermann Ebbinghaus first measured how long people remember) calculates that we forget about 60% of new information after two days. More recent research reports memory loss closer to 70% after a day. It's as if your working memory is an oil pan and there's a small hole in the pan. It may take a day or two, but most of the oil will drain out.

The irony is that cram sessions are often scheduled near the date of testimony so that the instructions will be fresh in the witness' mind. We recognize the risk that witnesses will forget some of what we tell them and so we look to scheduling as a solution. But that won't work either, because the concentration of information in the cram session will overload the witness and cause him to forget the instructions. Scheduling the deposition in proximity to the one preparation session does little to reinforce the concepts, and only serves to overwhelm the witness. Most witnesses fail to recall all of the information and advice, which leads to the often heard complaint, “But I warned my client about that!”

Forgetting becomes even more prevalent as we age. Therefore, focus for witness preparation should be on the sustainability of the instruction. To truly sink in, the information needs to be provided more than once, and must be refreshed and considered over time. With multiple sessions, the information, focus and instruction becomes reinforced and more deeply learned.

Chunking

Working memory is generally limited to seven to nine “chunks” of information or ideas. (See George Miller's seminal experiments, described in The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information, Psych. Review, first read as an Invited Address before the Eastern Psychological Association in Philadelphia on April 15, 1955. Available at http://bit.ly/2sR9Ur0.) When you think about the amount of information involved in orienting inexperienced clients to the complex rules of testifying — while they are also reviewing documents, hospital charts and records, emails and potential lines of hostile questioning — you can be sure that there will be a lot more than nine chunks of information or ideas for the witness to process. If you dump all this on a client in a single meeting, much of your guidance and counsel will slide off and be lost. To be truly effective, the person counseling the witness should schedule adequate time to convey all the “chunks” of information necessary to the witness.

Spacing and Resting

It is well accepted that spacing lessons over multiple meetings of shorter duration is more effective than one long session (see Peter C. Brown, Henry L. Roediger III, Mark A. McDaniel: Make It Stick: The Science of Successful Learning, Belknap Press, 2014). Why is this so? One expert, William R. Klemm, Ph.D. (Mental Biology: The New Science of How the Brain and Mind Relate, Prometheus Books, 2014), makes this observation:

Two ideas prevail. One is that in massed trials [cram sessions] there is not much time for each presentation to be processed in context. In spaced trials each learning presentation occurs in a slightly different context, thus providing many more implicit cues that can be unconsciously accessed during retrieval attempts. Finally, a host of recently reported studies show that each time you are re-exposed to a learning object, the memory is re-consolidated. Successive consolidation events reinforce each other. Multiple consolidations do not occur in massed trials because consolidation takes many minutes or even hours.

Your intuition may tell you that spacing is a terrible idea because your client will forget a lot when prep sessions run over a six-week period. Your client will indeed forget, and that, paradoxically, is a good thing. Multiple prep sessions are opportunities to refresh and relearn, and it is the process of relearning that consolidates the lessons and deepens the learning.

It is indisputable that spaced learning and multiple prep sessions work better than a single long meeting nearer to the testimony. That is because we learn best by doing. As kids, we didn't learn to ride a bike until after four or five (or more) attempts. Our bodies take time to find equilibrium. So too a rookie witness.

Resting is a slightly different concept. Researchers at the University of Texas (Austin) found that our learning ability is boosted when people allow their minds to rest and reflect on what they've learned. They compared brain scans of participants who used resting time to reflect on the new information with those that didn't rest and reflect. The former group did significantly better on tests. One of the researchers, Margaret Preston, said: “Nothing happens in isolation. When you are learning something new, you bring to mind all of the things you know that are related to that new information. In doing so you embed the new information into your existing knowledge.”

Here's an example. Let's assume you resist this idea that resting promotes learning. If I know you like to grill steaks, I could mention that it's generally recommended to rest your steaks for five to 10 minutes after taking them off the grill so the juices, which have been concentrated by the heat in the middle, flow back through the muscle fibers. Whether the analogy is good or not, it provides a latticework of existing knowledge to connect the new idea of resting. This increases the likelihood that you understand and accept the new theory. Multiple or staggered preparation sessions give new context and opportunities for sustainable learning.

Whenever someone seeks to disturb the status quo or embark on a new method to perform a particular task, there is always some level of objection. That is to be expected. You can anticipate that both the witness and responsible attorney will be concerned about the time required — “I barely have time for one prep meeting. Don't tell me I need to schedule two or three!” Cost is also a factor. There may be complaints that two or three, or even more meetings are more expensive than a single meeting. Finally, there will likely be complaints of noncompliance — “I have a hard enough time getting my physician client to show up for one meeting (he thinks the lawsuit is spurious and he largely ignores my requests to get together)!”

Each of these objections is understandable and frankly, accurate. However, science certainly supports this approach over the traditional method. Further, the costs and time are insignificant when compared to the downsides of poor preparation outlined above. The demands on health care providers have increased over the last decades, as have the risks of poor litigation outcomes. It is time for our methods at defending these matters to catch up to the science.

Conclusion

If there's a less important witness with simple testimony and no particular vulnerabilities, a single prep session will probably do no harm. For important witnesses and challenging testimony or risky documents, plan for multiple meetings. Three two-hour prep sessions spaced every two weeks are more effective than one six-hour meeting two days before the testimony. Even more effective are a single two-hour meeting and four 45-minute videoconferences (Webex, Facetime or Google +) that are spaced 10 days apart. For clients, the default preparation standard should be at least three meetings or conferences.

***** Gary Riveles, a member of the Board of Editors of Medical Malpractice Law & Strategy, is a founding partner of MacNeill, O'Neill and Riveles, specializing in the defense of healthcare providers. Mark G. Phillips, Esq., is a witness, trial and jury consultant at Phillips Partners Inc. Reach him at http://www.witnessready.com or www.phillipspartners.com.