Preparing an expert witness for deposition is an important duty of any litigator.  We recommend the following regarding preparing your expert witnesses for deposition.  Note:  The below is reprinted with permission from the text How to Prepare Your Expert Witness for Deposition.

 

  • Time spent on preparing your expert witness is usually a good investment of your client’s money.
  • Many/most poor expert witness depositions could have been prevented with proper preparation.
  • Even well-seasoned experts should be prepared.  Never assume an experienced expert witness needs no preparation.
  • Reviewing your expert’s deposition transcript will allow you to quickly identify past performance issues.
  • Reviewing past expert witness deposition transcripts of opposing counsel will help identify style, approaches, and questions likely to be asked.
  • Choose a time when your expert is likely to be fresh and will have time to prepare.
  • Explain why it is ill-advised to have the deposition in one’s own office.
  • Go over housekeeping issues such as anticipated length, parking, dress, attorneys likely to be present, whether the deposition will be on video, and how the expert will be paid.
  • Explain the basic legal rules of a deposition.
    • Opposing counsel has tremendous leeway in asking questions.
    • The objections available to you as retaining counsel are limited and, in most instances, your expert will still need to answer the question, even if it has been objected to.
    • The rules of discoverability of expert witness-retaining counsel communication in the jurisdiction in question.
  • Size up your witness.
  • Lock your expert down into absolute answers.
  • Build a record to exclude your expert under Daubert, Frye, or Rule 702.
  • Fish around for damaging information.
  • Tell the truth.
  • Actively listen.
  • This is a deposition.  It is not a friendly conversation with opposing counsel.
  • Their job is to answer the questions truthfully and articulately.
  • They should focus on the actual question asked.
  • The deposition is open book.  Your expert can look things up.
  • If your expert doesn’t know or doesn’t remember, she should just say so.
  • Don’t answer an unintelligible or confusing question.
  • The expert should do her homework and be prepared to answer key questions using headlines and bullet points.
  • Create a series of the 10–20 issues your expert must be prepared to answer questions on truthfully and articulately.
  • Having a full, complete, and exhaustive knowledge of the facts in the case.  This will help your expert:
    • Identify questions based on incorrect facts,
    • Identify mischaracterizations,
    • Be more confident, and
    • Make a favorable impression as a witness.
  • Review important dates, such as:
    • When the expert was first contacted by counsel,
    • When the expert was retained,
    • When the records were received and from whom they were received,
    • When the expert formed his opinion(s) in the case,
    • The date of the accident in question, and
    • The date(s) key tests were performed.
  • Knowing his CV cold.
  • Possessing intimate and complete familiarity with any reports or other documents that the expert has authored or signed in the case as well as any expert declaration.
  • If the expert has not drafted a report, you should go over the following with him:
    • Can the expert make and bring notes, timelines, etc. to the deposition?
    • Can the expert highlight records or excerpt them and bring them along?
    • Can and should the expert bring a list of the opinions he expects to offer at the trial, along with the concise reasons for them?
    • What other aids, if any, can the expert bring to the deposition?
  • Personally touching every piece of paper in the file.
  • Organizing the file oneself to allow quick and easy access to information even while under great stress.
  • Researching answers to common and expected “money” questions:
    • Their hourly rate.
    • How much they have billed to date.
    • How much they are owed on the case to date.
    • The percentage of their income that comes from legal matters.
    • What percentage of their work is plaintiff versus defense?
    • How often have they testified?  In which jurisdictions?  For which sides?
  • Thinking of the most difficult questions that counsel might ask and being prepared to truthfully and artfully reply to them.
  • Being able to express and defend each and every opinion the expert has expressed in the case.
  • It can be helpful to obtain past deposition transcripts of your expert witness and of opposing counsel.
  • Schedule the deposition for a favorable time and location.
  • Orient your expert witness.
  • Explain the likely goals of opposing counsel.
  • Provide your expert with general advice.
  • Identify areas of vulnerability for your expert witness.
  • Independently ask your expert to identify additional areas of concern.
  • Conduct a mock deposition with your expert.
  • Explain to your expert how he should prepare on his own.  This involves the following steps:

About the Authors

James J. Mangraviti, Jr., Esq. and Steven Babitsky, Esq., are frequently called by experts, their employers, and retaining counsel to train and prepare individual expert witnesses for upcoming testimony. They are former litigators who currently serve as Principals of the expert witness training company SEAK, Inc. (www.testifyingtraining.com).