Depositions, Health Care / Medicine, Legal Ethics, Litigators, Texas

Deposition Advice Column Irks Fellow Lawyers

A general advice column characterizes lawyers as disreputable. The truth hurts.

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When this lawyer took to the pages of a local industry mag to dispense general advice about depositions, she probably figured she was tossing out some non-controversial observations and maybe boosting her own profile. Hopefully it could drum up some business.

She probably didn’t count on kicking over a hornet’s nest of fellow lawyers, who ripped her advice and went so far as to accuse her of violating local ethics rules.

Hey, there’s no such thing as bad publicity, right?

Kimberly K. Bocell is a shareholder at the Dallas firm of Chamblee, Ryan, Kershaw & Anderson. She has a unique perspective on her health care practice because prior to law school, Bocell worked as a registered nurse. Last week, Bocell wrote an article in the D Healthcare Daily, a healthcare industry journal daily website run by D Magazine (the city/regional magazine of Dallas), offering general tips about having your deposition taken. For example:

1. Thou shalt prepare, prepare, prepare. It’s important to remember that depositions involve preparation on two fronts: factual and psychological. The factual prep is easy enough, since you likely provided at least part of the care in question, have the records of the case to review, and a thorough knowledge of the underlying medical issues. That said, know your role in the patient’s care, know the records, and know the medicine. As I tell witnesses, a deposition is an open book test, but you need to have studied the materials beforehand to ensure you are able to “turn to the right page” during the test. The emotional preparation is another story.

Pretty standard advice. Plus it has the benefit of resembling the Ten Commandments, so it’s probably a hit in Texas. Anyway, the controversy that most people zeroed in on was commandment number 10:

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10. Thou shalt not respect opposing counsel. Remember the speech about “closing” the deal by Alec Baldwin’s vicious, abusive character in the movie Glengarry Glen Ross? He’s only in it for the money. Assume that’s the opposing counsel in your deposition. If he can cause you to slip, that’s more money in his pocket. If you love your job as a healthcare provider, it’s up to you to fight for it.

You know what it takes to write that? It takes brass balls, gentlemen.

Commenters got rather irritated about this. Probably because they are all lawyers who need to be respected as delicate geniuses at all times:

I was stunned. By telling a witness that opposing counsel is assumed to be a vicious, abusive character who is only in it for the money, Ms. Bocell does the reader, herself, and the legal profession a great disservice and has embarrassed her lawfirm. She has also violated one of the basic tenets of Texas law; that is, each lawyer should abide by the Texas Lawyers Creed… “I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety.”

I’m not sure that’s fair. While Bocell’s wording leaves a lot to be desired, the message she’s trying to convey is that the witness should never buddy up to the opposing counsel. One of the most effective tactics for taking a deposition is to endear yourself to the witness. Witnesses who trust the lawyer taking the deposition become careless, start speculating, and otherwise stop providing perfectly accurate (if limited) answers. It’s worth counseling witnesses not to fall for this.

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Personally, I don’t think that’s the big problem with this article. My first commandment of deposition prep was always “tell the truth” — something one of the commenters on the article pointed out as well — because that’s theoretically the whole purpose of the deposition.

Perhaps telling the truth was assumed. Check that. Hopefully telling the truth was assumed.

Ten Commandments For Malpractice Depositions [Dallas/Fort Worth Healthcare Daily]

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