The Case for Leaving Loose Ends—an Introduction to Strategy for Deposing Doctors

• Publication year: 2018
• Author: BRAD WIXEN, ALJ

The Case for Leaving Loose Ends—An Introduction to Strategy for Deposing Doctors

BRAD WIXEN, ALJ

Los Angeles, California

My niche for the better part of the last decade has been deposing medical experts for other attorneys in the areas of workers' compensation and personal injury law. One question I occasionally get from my clients is, "Why didn't you nail it down?" What the client means is that they wanted particular testimony, and they wanted it crystal-clear, and they weren't happy that this didn't happen. What I must explain to them is that I made a deliberate decision not to nail it down but instead to leave loose ends. This article explains the decision-making process and strategy for leaving those loose ends in the deposition of a doctor.

Lay the Foundational Facts

In taking the deposition of a doctor, you must first know where you would like to go and have a plan for getting there. That plan involves walking down a garden path of obvious foundational yes-or-no questions and answers intended to lead to the conclusions you want. As a rule, never ask a garden path question you don't know the answer to.

Asking for a Conclusion: Nail It Down or Keep It Loose?

Once you've laid the foundational questions, it is time to decide whether to ask the doctor for their conclusion and nail it down. This is a blurry line. Questions to consider are: Is it worth it to even ask the question? Is the doctor going to be persuaded by the proposed conclusion? Is it better to make a record that is plausible and/or makes the point than to have the doctor specifically state that they do not agree?

As you proceed, it is important to be measuring the cost-benefit ratio of the risk involved. Often, the better decision is to move on without insisting the doctor change anything in their testimony. There are various reasons for making that choice. The following sections present some scenarios where you might not insist on getting the doctor to nail it down.

Standard of Evidence

Always be aware of the standard of evidence that applies. This will guide you in deciding whether you need to nail down a conclusion. For example, if the doctor states that a particular assertion is a "possibility," that may have no particular legal weight absent the requisite standard of evidence, whether it be medical probability or preponderance of evidence. Keep in mind that the law always has a burden of proof. For instance, it is generally the defendant's burden to demonstrate apportionment. If the...