“Usually, the plaintiff’s attorney should take the deposition of their client’s treating doctor.”
In most cases, for plaintiff’s attorneys, a powerful settlement tactic is to take the deposition initiative. Prepare the main treating doctor for a deposition, and promptly schedule and depose that treating doctor. This proactive tactic leads to better settlements for the plaintiff.
Average plaintiff’s counsel leave the doctor’s direct testimony, in its most powerful form, unknown to the defense insurer. The insurer gets only a cross-examination managed by their defense counsel in a deposition, followed by a little “rehabilitation” the plaintiff’s attorney inserted into the defense deposition.
Power Litigators push the doctor’s direct testimony directly into the vision of insurance managers and make them pay attention to the plaintiff’s injuries as real.
To successfully try a personal injury case, plaintiffs usually need the treating doctor as a witness. The stronger that treating doctor’s testimony is to the jury, the better the chances are of a large award. The defense attorney and insurance claims manager recognize this. The defense wants to evaluate the strength of content of the main treating doctor’s testimony, the strength of the manner of testimony, and the strength of the doctor’s resistance to cross-examination at a trial. Therefore, 99 out of 100 cases, the defense attorney will schedule a deposition of the plaintiff’s main treating doctor.
In contrast, the plaintiff’s attorneys only rarely take the deposition of the treating doctor. Moreover, at the defense’s deposition of the doctor, the plaintiff’s counsel makes little or no attempt to ask questions. Certainly, most average plaintiff-side litigators make no attempt to do a full scale direct examination of their doctor after the defense has finished its adverse examination at the deposition. Average plaintiff’s counsel leave the doctor’s direct testimony, in its most powerful form, unknown to defense and the insurer.
It is an error for plaintiffs to so proceed. Leaving defense counsel and the insurer thinking that the doctor will not be effective at trial does not bring dollars to the settlement table. Most cases are settled, not tried. Therefore, it is generally to the advantage of the plaintiff to disclose the treating doctor’s direct testimony during the course of discovery in as forceful and positive a manner as possible.
There is little, if anything, to be lost by exposing the full direct testimony of your treating doctor as soon as you can — and that means by a deposition, not at trial. It is unlikely that the defendant’s attorney will think up a smashingly good question to be used at trial simply because the direct testimony has been earlier exposed by the plaintiff. If the plaintiff’s attorney takes the treating doctor’s testimony in a deposition, in the format just as though it were the testimony at trial, the plaintiff will generally be in more advantageous negotiation position when numbers are being discussed. I repeat: most cases are settled, not tried. Your real target of persuasion in most cases is the defense claims manager (not the jury). You want to hit that real target with the full force of your medical testimony.
If the defense beats you to the noticing of the deposition, after the defense attorney has concluded his/her examination at the deposition, generally when it comes to your turn to ask questions, ask your planned direct examination questions. Treat the opening of your turn to depose the doctor as the beginning of a direct examination at trial. Ask the treating doctor your entire program of trial questions as if it were first and only questions the jury will hear, i.e., as you would present the direct testimony at trial. This is your direct examination of your witness. Do it your way, not in the order or format the defense wants to dictate. Why do you do this? Because:
- You create the option, if needed, to use the deposition at trial as forceful direct testimony.
- You will be presenting your side of the medical damages case in its most powerful format. This is an advantage to you in influencing the settlement value of a case.
In a few localities, the judge requires counsel to take their client’s own doctor’s deposition to avoid trial delay if the doctor is unavailable. In more localities it is standard practice for plaintiff’s to take the deposition of their own treating doctor only to preserve the evidence for trial if the doctor is unavailable. I hope that now you are convinced that preservation of the doctor’s testimony is not the primary reason why plaintiff’s counsel should depose and do a direct examination of their client’s own treating doctor.
Executive Summary. Plaintiffs counsel should routinely strive to increase settlement value. (They don’t tell you about this in law school.) Most cases are settled, not tried. So use a standard medical deposition and trial testimony outline checklist format and routinely take the deposition of your plaintiff’s main treating doctor. It pays.
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A deposition and trial testimony Questions Checklist Outline for plaintiff’s attorney to use in direct examination of plaintiff’s own treating doctors is available here.