When this happens in a deposition, take what you can get
A: I reviewed the chart, and spoke to the nurses, the same as I always do. Perhaps I should have double checked with the patient to make sure they had not eaten anything before administering anesthesia…
Sometimes the witness, no matter how well-prepared, may not be aware that a fact is harmful to them. Or sometimes they may accidentally let something slip that they didn’t intend to. When the witness inadvertently or unknowingly says something that’s beneficial to you, what do you do? Pound the table loudly and scream “booyah!”? Well that’s what you WANT to do…but what SHOULD you do?
In a situation like this, you must be mindful of whether or not the witness is likely to try to retract what they’ve said if you continue harping on the issue. You don’t want to point out to the witness that they’ve made a really horrible admission that hurts them and helps you. So sorry, pounding the table, pointing at them and screaming “busted!” probably isn’t a good idea.
BUT, the absolute WORST thing you can do is go back and ask the question again to “make sure” that the witness answered it the way you wanted when you already have something that’s very useful. When you do this, the witness might realize what’s going on and say ‘oh I misspoke, I actually meant X’. In addition to alerting them to a potential mistake, you’ve given them more time to think about the answer and come up with an excuse or concoct or change their story. Suddenly, the very nice question and beautiful answer you got has been marred by subsequent testimony that essentially eliminates any benefit you just received.
In this particular example, the doctor all but admitted that he didn’t ask a simple question that he should have. The most significant part of the answer is not that he did or did not ask the patient. Rather, it was the admission that he should have done so. That’s about as good an admission of negligence as you are going to get. But if you decide to harp on this point by getting him to repeat that he should have asked, you’ll likely get backtracking, “Well it was not really required because we ask that multiple times leading up to the operation” or “it is not required to ask the patient if they have eaten, I merely said I ‘should have’ in this instance because of the benefit of hindsight.” It’s inevitable that opposing counsel will do his dead-level best to “fix” the bad statement, either via affidavits, rehabilitating examination, or via other witnesses. But those attempts are going to be a lot less persuasive than if the witness rehabilitates himself during the same deposition session even before a break to consult with his attorney.
Once you get an answer that’s good for you, unless it’s simply not clear, and you know it won’t be clear on the transcript, leave it alone. Take what you can get and move on to the next issue.
Remember, you’re not going to be quoting pages and pages of transcript testimony most of the time. Instead, it will be just a very small snippet, so a 10-word question followed by a 2-word answer is plenty when you’re trying to make your point during a motion or even at trial.