Part II of II

Preparing Your Sales Force to Testify¹

No one likes to be deposed. Court reporters, cameras, and lawyers combined with forced conversation can send even the most experienced professional into a panic. Although your sales representatives have demonstrated excellent communication when acting as a resource to physicians, performing well in the artificiality of the deposition process requires a different set of skills. Effective preparation on both the general process and the case-specific issues can minimize the stress and turn a potentially adversarial encounter into a positive experience for both the individual testifying as well as your company.

Allay Fears and Explain the Process

At this stage in their lives, most sales representatives have never spent a day with a lawyer, and if they have, the odds are that they have not had to meet with an attorney in the context of preparing to testify at a deposition or trial. To the extent possible, put the sales representative at ease by explaining what her role will be in the litigation. Explain the nature of the case and the parties involved, and let the representative know that she is an important witness because she is the company’s primary contact with the physician(s).

Although you want to assure the sales representative that the company is looking out for her best interests and is taking action to ensure she will be prepared for deposition, you also need to be aware of and guard against potential conflicts. The company should only provide counsel for the sales representative so long as there are no conflicts of interest. For this reason, you should review the sales representative’s employment file and be prepared to address any past or future potential compliance issues.

Provide your sales representative with the contact information for the outside counsel who will prepare the sales representative for deposition. Define your role versus the role of outside counsel. For example, who should they call if they identify documents in their file related to the case? Indicate that outside counsel will meet personally with the sales representative and most likely run through anticipated deposition questions. (A list of potential deposition topics accompanies this article.) Let the sales representative know that preparing for deposition requires at least two meetings: One meeting to go over potential topics that may be covered and to review documents and another close to, if not the day before, the deposition to refresh the sales representative on both substantive and procedural concerns.

Instruct the sales representative not to discuss this matter with family, friends, or work colleagues and that any calls or inquiries she may receive should be directed to legal counsel. Explain that the sales representative will likely be asked with whom she discussed the case and that any of the persons who were privy to these discussions may be subject to depositions themselves.

You should also inform the sales representative’s immediate supervisors — e.g. district and regional managers — of the sales representative’s upcoming deposition. Not only could they have particular knowledge about relevant marketing issues in their territory, but they also need to know that their sales representative will be pulled from the job on multiple occasions for preparation and the deposition itself.

Gather Relevant Documents

If a deposition subpoena has already been served on your sales representative, it most likely includes a listing of the categories of documents the sales representative will have to bring to deposition. Even if not listed, for preparation purposes, the sales representative will need to collect all of his or her documents along with laptops, jump drives, or any other electronic storage devices containing information about the drug and physician at issue and bring those documents to the meeting with counsel.

By this point in the litigation, key sales and marketing documents may have been identified. Local counsel should maintain copies of these documents and identify which documents could be helpful in preparing the sales representatives. Conversely, there will likely be internal documents that the sales representative has not been privy to and that should not be used when preparing the sales representative to testify.

If the court has required the production of call notes and/or IMS data relating to the plaintiff’s prescribing physician, the sales representative should be prepared to explain what the notes and data mean and how they are used. Pull a copy of the sales representative’s employment file noting all awards, accolades, counseling, and reprimands. Although the sales representative has likely already received your company’s document retention letter, remind her there should be no destruction of documents, sales pieces, or electronic data related to the drug or physician at issue.

Emphasize Your Company’s Themes

Notwithstanding plaintiff’s counsel’s attempts to gain key concessions from your sales representative to aid his client’s case, the deposition can also be an opportunity to present the company’s story. Good politicians know how to “stay on point.” Your sales representative should be similarly prepared to stress the underlying themes of your case. Although your themes will hinge on the issues presented in your particular case, a few ideas appear as leitmotifs throughout pharmaceutical and products litigation.

A Sales Representative’s Credibility is Job Security

Sales representatives are employed by the company to be a resource to physicians. They are responsible for discussing the benefits and limitations of their company’s drug so that physicians can determine whether or not a product is appropriate for their patients. To do their jobs well, sales representatives need to be informed, knowledgeable, and honest. Only through consistent, accurate communication will they gain the credibility and goodwill necessary to build a long-term relationship with a physician; they are not interested in making the hard pitch to achieve a one-time sale.

Dishonesty is not only severely punished by the company, but it does not make economic sense for the sales representative. Any short-term gain through over-promotion would be outweighed by the damage to the sales representative’s reputation and possible termination by the company. The sales representative should be prepared to offer examples of company policy, demonstrating that termination can result from inaccurate advertising. For example, what are the repercussions for a sales representative using a “homemade” sales aid or detailing off-label?

Sales Representatives as One of Many Resources to Physicians

Although your sales representative provides accurate and helpful information to the physician, a sales representative is not a medical doctor and cannot be considered a complete source of information for physicians. Your sales representative should be prepared to address how your company handles physician information requests and whether the prescriber(s) at issue ever requested additional material. Other sources for physicians include package inserts, medical journals and articles, medical conferences, press releases, peer to peer education, and their own experience. A physician would need to review many sources to have complete information on a drug.

Physicians, Not Sales Representatives, Prescribe Medications

The final decision to prescribe a drug to a patient is the physician’s individualized medical judgment based on the patient’s individual medical history and risks. A sales representative is not attempting to convince physicians that her company’s drug is appropriate for any one patient — that is a determination only the physician can make. A large part of what sales representatives do is distinguish their product from competitors’ products so that when a physician determines a patient will benefit from a given drug class, the physician will choose to prescribe the company’s drug, rather than other drugs in the same class.

Science, Not Marketing, Guides Sales Representatives

All of the training given to sales representatives and the material they use in the course of detailing physicians has been developed based on valid scientific studies and approved by the research division of the company. Although the marketing department may determine appropriate ways to communicate and package the company’s message, the message itself is developed by the research arm of the company.

The FDA Has the Final Word

The business of making and selling prescription pharmaceuticals is highly regulated and tightly controlled. All sales and marketing activities are subject to FDA review and approval. In addition to the FDA’s supervision of marketing, Congress is considering passing new legislation to require disclosure of most payments, including meals over a certain threshold, to physicians (see “Warning! Compliance Forecast Calls for Sunshine,” p.2 of this issue). Given the federal government’s level of monitoring, it is disingenuous for plaintiff’s counsel to suggest that the company’s marketing department attempted to deceive the FDA.

Avoid Traps

Even a sales representative who is well prepared for the deposition process, tuned into potential areas of inquiry, and ready to convey the company’s themes can fall prey to plaintiff’s counsel’s verbal traps. Questions that appear innocuous may come back to haunt the company.

Acknowledge Skills

A variety of skills are necessary to communicate all components of a sales presentation. A strong background in science is not a required trait. Acknowledging plaintiff’s counsel’s statement to the contrary may act as an admission that the company’s sales force is undereducated for their task.

Sales representatives should openly discuss their education and training and not try to oversell their substantive knowledge. Consistent with the themes above, the research arm of the company and the scientists who work there have already prepared the message. The sales representative’s job is to convey that message in an effective way and provide approved information to accommodate individual physician’s prescribing habits.

Know Limits

Sales representatives need to answer questions based on their own understandings and experience. They should not purport to speak on behalf of the company as a whole or, more narrowly, other sales representatives within their territory. Often, plaintiff’s counsel may present sales aids in draft rather than final form or fail to distinguish between material that may be used as an aid and material that may be left with the physician. For this reason, a sales representative should not testify that a particular aid was used unless he or she is certain of that fact from personal experience.

Similarly, sales representatives should candidly acknowledge that they are not medical or regulatory experts. Sales representatives need to know that they do not have to have definitive answers to regulatory questions and that “I don’t know” is an acceptable answer. For example, whether or not a given marketing piece is consistent with the label is a complex determination. The representative may answer, “I am not a regulatory expert or a medical doctor. My understanding is that this material was reviewed and approved by our regulatory department.”

Respect the Audience

Remind your sales representative that the audience is a jury. Many jurors’ experience at a physician’s office is sitting in the waiting room for a while, followed by a very brief visit with the physician. While having half-hour lunches with a physician and his staff may seem routine to the sales representative, it may be viewed as unparalleled access when compared to the jurors’ own experience. A deposition riddled with jargon may also turn off some jurors. For example, if a sales representative refers to a physician as a “target,” the jurors may perceive her as only interested in the sale rather than acting as a resource.

Performing well at deposition requires a great deal of preparation and focus. Educating your sales representative about the process, the substance, and the potential pitfalls of a deposition helps ensure that your sales representative will perform as admirably in the deposition room as she does in the physician’s office.

Potential Areas of Inquiry at Sales Representative Deposition

Sales Representative Background

• Personal (married/children/activities in community)
• Education
• Employment
• Training
• Sales Quotas/Compensation/Bonus
• Sales Aids (branded/unbranded; company logo)
• Off-label Protocols
• Order of Sales Presentations
• Labeling Changes
• Familiarity with Studies
• Sampling Policy
• Speaker Programs/Gifts
• Personal Use
• Sales Force Structure
• Detailing Generally
• Medical Literature Policy
• Key Prescribers

Prescriber History

• Any and all discussions with prescriber about drug/device at issue;
• Any comments (positive or negative) from prescriber regarding drug/device at issue;
• History of prescribing drug and device;
• Off-label inquiries from prescriber;
• Any discussions with prescriber regarding litigation associated with drug/device at issue;
• Any discussions with prescriber where issue caused or contributed to a particular health problem or disease;
• Any discussions with prescriber regarding efficacy of the drug/device at issue;
• Any discussions with prescriber regarding safety of the drug/device at issue;
• Knowledge of prescriber’s litigation history (e.g., has he ever worked as an expert?);
• Prescriber’s attendance at lunch and learns, company-sponsored speaking events, etc.;
• Prescriber’s standing and reputation in the community; and
• Whether prescriber still uses drug or device in his practice.

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[1] Part I of this series, published in the April 2009 issue of Pro Te: Solutio, focuses on training your sales representatives to be successful in the field while at the same time minimizing their exposure should they ever be called to testify.

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