Your First Deposition as a Nurse Expert Witness

A deposition is sworn testimony taken before trial, usually by the attorney on the other side, with a court reporter recording every word. For a nurse expert witness the goal is narrow: explain the opinions in your report accurately, show how the record supports them, and say nothing you cannot stand behind. Most of that is decided before you walk in, by how well you know your file.

What a deposition is, and who is in the room

A deposition is questioning under oath outside the courtroom, usually in a law office or by video. If you are new to testifying, the nurse expert witness page explains what attorneys hire a testifying nurse to do. In the room, expect:

• Opposing counsel, who asks the questions. Their goals are to learn your opinions, find their limits, and collect material to challenge you later.
• The retaining attorney, who defends the deposition. They may object, but usually ask few questions of their own.
• A court reporter, and sometimes a videographer. The transcript, and any video, can be used later, including at trial.

There is no judge. When the retaining attorney objects, you usually still answer unless they instruct you not to.

Before: prepare with the retaining attorney

Ask for a preparation session, and bring these questions:

1. What has been disclosed? Your report, CV, testimony list, fee schedule and the materials you were sent. You will be asked about each.
2. What should I bring? You may get a notice or subpoena listing documents to produce. Follow the attorney's direction, and do not bring extra notes, highlighted copies or drafts unless they say so.
3. How should I handle notes and messages from now on? Rules on what an expert's drafts and communications reveal vary by court. Ask before you create anything new in writing about the case.
4. Who pays for my time? In many courts the side taking the deposition pays a reasonable fee for the expert's time, but it depends on the rules and your agreement. Settle it in writing before the date, including preparation, travel, minimums and late cancellation.

Attorneys choose experts partly on how they hold up in this room (see how attorneys choose a nurse expert witness). Then reread:

• your report, line by line, and every record page it cites,
• the depositions and policies you relied on,
• your CV and testimony list, checking both for accuracy (see what attorneys look for in a nurse expert CV),
• the key timeline, until you can find any entry in the record quickly. A report that cites its sources makes this far easier (see how to write a legal nurse consultant report).

The questions you will be asked

Most nurse expert depositions cover the same ground:

• Background. Education, licenses, certifications, every position and what you do now. Expect detail on your current clinical work.
• Expert work. How long you have consulted, how many cases you have reviewed or testified in, the share for plaintiffs and for defendants, and what you are paid. Give accurate figures if you have them, or say you would need to check.
• Your file. What you were sent, what you reviewed, what you asked for and did not get, and who you spoke with.
• The standard of care. What it required here, where it comes from (education, experience, facility policy, professional guidelines) and how you know.
• Each opinion. The deviation, the record entries that show it, and what a reasonably prudent nurse would have done.
• Limits. What you are not offering opinions on. Causation and physician care are typically outside a nursing opinion.

Expect hypotheticals ("Assume the nurse had called the physician at 0200...") and questions about published texts. If you are asked whether a book or article is "authoritative", be careful: agreeing can open the door to passages being read back to you. An answer such as "I find it useful on some topics, but I'd need to see the passage" is often safer. Go over this with the retaining attorney in preparation.

How to answer

• Listen to the whole question, then pause. The pause gives the retaining attorney time to object and gives you time to think.
• Answer only the question asked. Then stop. Do not volunteer, teach or fill silence.
• Don't guess. "I don't know", "I don't recall" and "I'd need to see the record" are proper answers when they are true. Ask to see the page before answering a question about it.
• Fix mischaracterizations. If a question restates your opinion wrongly ("So you're saying the nurse should have..."), say so and state it correctly.
• Avoid absolutes. Questions built on "always" and "never" invite a counter-example. Nursing judgment depends on the patient, the policy and what was known at the time.
• Separate the standard from your habits. "What would you have done?" is a different question from "What did the standard of care require?" Your opinion is about the second (see what the nursing standard of care is).
• Stay in nursing. Asked whether the delay caused the injury, it is usually right to say that is outside your opinions.
• Correct yourself. If you realize an earlier answer was wrong, say so on the record as soon as you notice.
• Take breaks, but never with a question pending.

Video and remote depositions

On video, a jury may later watch you, so look at the questioner, keep answers steady and dress as you would for court. Remotely: a quiet room, a stable connection, nobody else present, and no notes, messages or other screens unless the attorneys have agreed to them. Close every other program before you start.

After: the transcript

You may have the right to read the transcript and sign it, with an errata sheet for corrections. Ask the retaining attorney whether to reserve that right. The errata sheet is for transcription errors, such as a misspelled drug name or a wrong time. Changing the substance of an answer after the fact draws attention and can be questioned later.

Then talk it through with the retaining attorney: what went well, and what you would prepare differently. Ask before writing anything down about it. Your second deposition will be easier.

For how attorneys approach the other side of the table, read deposing a nurse in a malpractice case, and for the qualification challenges that sometimes follow, Daubert and Frye challenges to nurse experts.

Next step

Learn the legal basics behind expert work in the free LNC Academy course before your first testimony engagement.

General information for legal professionals, not legal advice. Rules and deadlines vary by state; check the statute and local rules that govern your case.