Excerpted from the text How to Prepare Your Expert Witness for Deposition
FREE DOWNLOAD: 247 Sample Deposition Questions for Expert Witnesses
- Beginning a deposition with a pointed, challenging question in an attempt to rattle the expert.
- Requesting that the expert waive reading and signing of the deposition transcript.
- Making the deposition physically uncomfortable for the expert (temperature, chair, stuffy room, no hydration, etc.).
- Conducting a lengthy deposition in an attempt to wear the expert down.
- Questioning on notes taken by the expert at deposition.
- Jumping to different topics.
- Asking about the expert’s notes.
- Asking if anything has been removed from the expert’s file.
- Intimidating the expert with an unfriendly demeanor.
- Asking about conversations retaining counsel had with the expert during the break.
- Trying to get an answer that contradicts the expert’s report or the interrogatories.
- Trying to lock down the expert on how critical a factual assumption is.
- Questioning about newly presented documents.
- Attempting to get the expert to unwittingly attest to the authenticity of a document.
- Asking about key names and dates.
- Trying to get the expert to lose her cool.
- Asking unintelligible questions in an effort to get the expert to volunteer information.
- Remaining silent after the expert finishes answering a question to try to elicit more information.
- Getting the expert in a rhythm.
- Asking convoluted questions.
- Asking “catchall” questions to limit future testimony.
- Using the expert’s own office against her.
- Bringing the opposing party to the deposition.
- Counsel asking if the expert has anything else to add.
- Using abusive conduct.
- Counsel playing the “wide-eyed student” in an effort to get the expert talking.
- Using hypothetical questions designed to turn the expert against the case.
- Trying to get the expert thrown off the case.
- Questioning “magic word” legal standards.
- Scheduling a deposition over multiple days to get the expert to contradict herself.
- Getting the expert to criticize co-defendants.
- Mischaracterizing the expert’s testimony or opinion.
- Getting the expert to agree that a text is “authoritative.” Retaining counsel should make sure experts know the consequences of casually agreeing to this. Agreeing that a treatise is authoritative results in the legal consequence that the statements in the text that were otherwise inadmissible as hearsay can now be read into evidence to contradict the expert’s opinion.
- Asking if the expert turned in a colleague she was critical of for professional discipline.
James J. Mangraviti, Jr., Esq., has trained thousands of expert witnesses through seminars, conferences, corporate training, and training for professional societies. He is also frequently called by experts, their employers, and retaining counsel to train and prepare individual expert witnesses for upcoming testimony. Mr. Mangraviti is a former litigator with experience in defense and plaintiff personal injury law and insurance law. He currently serves as Principal of the expert witness training company SEAK, Inc. (www.testifyingtraining.com ). Mr. Mangraviti received his BA degree in mathematics summa cum laude from Boston College and his JD degree cum laude from Boston College Law School. He is the co-author of numerous books on expert witnessing, including: How to Prepare Your Expert Witness for Deposition; How to Become a Dangerous Expert Witness: Advanced Techniques and Strategies; The A–Z Guide to Expert Witnessing; Depositions: The Comprehensive Guide for Expert Witnesses; How to Write an Expert Witness Report; and How to Market Your Expert Witness Practice: Evidence-Based Best Practices. Mr. Mangraviti was the co-founder in 2000 of SEAK’s Expert Witness Directory (www.seakexperts.com ), which is an often-used national resource for attorneys to locate expert witnesses. He can be reached at 978-276-1234 or email@example.com.
Steven Babitsky, Esq., is the President of SEAK, Inc. He was a personal injury trial attorney for twenty years and is the former managing partner of the firm Kistin, Babitsky, Latimer & Beitman. Steve has helped expert witnesses and their attorneys prepare for deposition in a broad range of cases, including antitrust, patent, medical malpractice, wrongful death, computer forensics, and many others. He has trained the Federal Bureau of Investigation, the Federal Aviation Administration, and has worked with numerous forensic and financial companies including Fortune 500 companies. Mr. Babitsky is the co-author of the texts How to Prepare Your Expert Witness for Deposition; How to Become a Dangerous Expert Witness: Advanced Techniques and Strategies; How to Write an Expert Witness Report; The A–Z Guide to Expert Witnessing; and How to Market Your Expert Witness Practice: Evidence-Based Best Practices. Attorney Babitsky is the co-developer and trainer for the “How to Be an Effective Expert Witness” seminar and has been the seminar leader since 1990 for the Annual National Expert Witness and Litigation Conference. Mr. Babitsky trains hundreds of experts every year. He may be contacted at 508-548-9443 or firstname.lastname@example.org.