Excerpted from the text How to Prepare Your Expert Witness for Deposition
1. Investing in Preparation
Lawyers all too commonly fail to prepare their expert witnesses properly for a deposition. This lack of preparation is one of the most common complaints that the authors hear from experts. The most frequent reasons for this failure are the time and expense involved in the preparation. Failure to thoroughly prepare your expert witness for deposition is a serious and avoidable mistake.
The authors have trained and counseled thousands of expert witnesses. When we are asked to train or assist an expert who has given a poor deposition, we always inquire if retaining counsel prepared the expert witness for the deposition. The answer to this question is almost universally “no” or “we met for a few minutes right before the deposition.” Keep in mind the following points:
- Very few civil cases are now tried.
- Most cases settle.
- Many civil cases are highly dependent upon expert testimony.
- Prepared expert witnesses typically perform dramatically better than experts who are not prepared thoroughly by retaining counsel.
- Mistakes by expert witnesses while testifying at deposition are most often preventable with proper preparation.
- The settlement value of your case is likely to be very closely correlated with how well your expert witness prepares for deposition.
- Expert witnesses who perform poorly at deposition often see their careers end as word travels quickly in attorney circles.
With the above points in mind, you can see how important it is to fully prepare your expert witness to testify at deposition. How much time you spend preparing your expert witness will be left to your best professional judgment, taking into consideration the size of the case, the time available, and the testifying skills and experience of your expert witness. In the opinion of the authors, even well-seasoned expert witnesses should be sufficiently prepared by their retaining counsel. The authors’ bottom line advice in this regard is, don’t be penny wise and pound foolish and never assume that the expert is so experienced that he needs no preparation by you. While your expert may have testified in ten, twenty, or more depositions, he may be making the same mistakes over and over again. The authors have found that almost all experts perform at a higher level when prepared for deposition properly. The time you invest in preparing your expert witness is often well worth it.
In the sections below, the authors outline the methodology we use when we are retained by the expert or retaining counsel to prepare an expert witness for a deposition. Whether we use all of the techniques and how much time we spend on each are functions of the economics of the case and the budget of our client. In a world of limited resources, your professional judgment should be applied to decide what to focus on as part of your preparation work.
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2. Obtain Past Deposition Transcripts
It can be quite helpful to obtain a recent deposition transcript or two from your expert witness. These can be obtained most easily by asking your expert witness for a copy. If your expert witness does not retain any past deposition transcripts, you may have to turn to past counsel, databanks, your colleagues, or other sources to obtain them.
Take some time and study the transcripts. What you will often find is evidence of the historical strengths and weaknesses of your expert witness. This can help highlight areas that your expert witness needs to focus on. For example:
- Answering questions beyond one’s area of expertise.
- Being unable or unwilling to say “I don’t know.”
- Interrupting counsel and not waiting for the questioner to finish.
- Making up numbers.
- Not leaving themselves some wiggle room.
- Rambling rather than putting a period and stopping talking.
- Speaking when no question is before them.
- Using hedge words.
- Using slang like “yeah.”
- Volunteering and not answering the specific question asked.
By reviewing a past deposition transcript of your expert witness, you will be able to concentrate your preparation on areas of proven need and also provide your expert witness with invaluable feedback. The limitation of this technique is that you are to a certain extent planning to fight the last war. There is no guarantee that new problems won’t arise that didn’t occur in the past deposition. That said, the experience of the authors is that obtaining and critiquing a past deposition transcript of your expert witness can be highly beneficial and is an efficient use of time.
The flip side of this approach is to obtain old deposition transcripts of opposing counsel who will take the deposition. Every lawyer has her own standard persona (for example, aggressive, aw shucks, friendly, playing dumb, etc.) and stable of trick and difficult questions (“What’s your margin of error?” and “Is your opinion engraved in stone?” are two) for expert witnesses. Finding these out in advance and warning your expert can be very helpful. It is also good practice to ask around and obtain as much intelligence as possible on the lawyer who will question your expert witness at deposition.
3. Time and Place of the Deposition
You will have a certain amount of control over the time and venue of your expert witness’s deposition. The authors recommend that you try to arrange the deposition for a time when the expert witness and you will have an opportunity a few days beforehand to get together to prepare. Find out what your expert witness has going on immediately prior to the deposition. Make sure your expert will be fresh. If your expert is not likely to be fresh, consider trying to reschedule the deposition.
Also consider moving for a time limit for the deposition, first by seeking agreement of counsel and then moving the court if necessary. In federal court, there is a 7-hour time limit for expert depositions. Even if your jurisdiction does not impose time limits, your efforts will put pressure on counsel and the court may give you the limits you request.
Let your expert know that it may be possible to move the scheduled deposition, given enough advanced warning. Depositions are rescheduled all the time. Make sure your expert knows that if unforeseen circumstances prevent him from being able to have the time to prepare properly, he should let you know immediately as you may be able to delay the deposition. Consider giving the expert your cell phone number for emergencies.
Time of day matters. Some experts are morning people, some are night people. Find out when your expert prefers the deposition to start. Try to arrange the deposition to take place at a time when your expert will most likely be at his best and so that the deposition can be concluded without spilling over into the next day. Giving opposing counsel additional time to study prior answers and formulate new questions is neither in your expert’s or your best interest.
Venue is also important. It is recommended that the deposition not take place in your expert’s office. Some experts may push back at this. If so, you will need to educate them regarding the inherent disadvantages of having their deposition in their own office. Explain the drawbacks of having the deposition in your expert’s office, including:
- Potentially damaging informal discovery opportunities for opposing counsel.
- Cost and staff time to the expert.
- Potential availability of authoritative texts. Counsel may ask about books on the witness’s bookshelves. A particularly worn textbook could indicate that it is heavily relied upon by the expert.
- Availability of onsite records and computers.
- The expert may be less likely to prepare.
4. Orienting Your Expert Witness
A good way to start the preparation session is to orient your expert witness to the deposition process. How much time should be spent on this orientation depends upon the expert witness’s level of experience and the particulars of the case at hand. The orientation should include going over housekeeping matters, briefing on law and procedure, explaining the likely goals of opposing counsel, and general advice.
It is very helpful to go over housekeeping matters with your expert. This will serve to minimize distractions and allow your expert to focus on matters of substance. The authors suggest that you cover the following:
- When and where to appear.
- Anticipated length of the deposition.
- Where to park.
- How to dress.
- How many attorneys will likely be present.
- Will the deposition be videotaped?
- Who will pay for the deposition? Can payment be achieved prior to the deposition?
- Will the expert be paid for her time preparing for the deposition (approximate amount)?
Law and Procedure
You should orient your expert witness to the law and procedure of a deposition. How much time to spend on this depends upon the expert witness’s experience, keeping in mind that even experienced experts may have fundamental misunderstandings as to how depositions work. At a minimum, she should understand:
- Opposing counsel has tremendous leeway under the law to ask questions, the applicable legal standard being “reasonably calculated to lead to the discovery of admissible evidence.” Combining this rule with the fact that the expert’s credibility is an issue in the case, basically means that fishing expeditions are allowed at depositions. The authors have found that many experts get annoyed and frustrated when asked seemingly irrelevant questions at depositions. This can detract from the expert’s performance. Suggest that your expert just roll with the punches and keep in mind she is being well paid to accommodate the other side’s fishing.
- Many experts get frustrated that they get beat up at deposition and retaining counsel just sits there. Even worse, when there is an objection, the expert is still required to answer. Explain that under the rules retaining counsel can object to only a limited number of types of questions. Further, the reason the expert still needs to answer the question is that there is no judge at the deposition to rule on objections. If necessary, the judge will rule on objections prior to trial.
- Discuss the rules regarding the discoverability of expert witness communications with retaining counsel in your jurisdiction (as these are subject to tremendous and critically important variability).
The Likely Goals of Opposing Counsel
Give your expert witness an orientation to the likely strategies and goals of opposing counsel in this case. At a minimum, your expert witness should understand the following:
- Opposing counsel will size up your expert witness and determine how effective he is likely to be at trial. This includes demeanor, body language, communication skills, and preparation/mastery of the facts. Your expert should understand that it is not just what he says, it’s how he says it. A helpful way to quickly demonstrate this is to use YouTube to show some deposition clips of famous people. Bill Gates, Bill Clinton, and Rudy Giuliani are all instructive in this regard.
- Opposing counsel will want to try to lock the expert down as much as possible with absolute answers such as “yes” or “no.” One of the skills your expert should be prepared to use is recognizing that the most truthful answer to many questions can often leave the witness with a little wiggle room, for example, “not that I can recall at this time.” Test your expert’s grasp of this concept by asking some lock-down questions, such as, “Are all of your opinions you will be giving at trial contained in your report?” and “Did you consider anything not listed in your report?” If the answers to these questions are absolutes (such as “yes” or “no”), you need to continue to work with your expert on his skills regarding lock-down questions.
- Opposing counsel may try to build a record to support throwing out the expert’s opinion under Daubert or Rule 702. Your expert needs to be aware of this goal. Failing to prepare for it may well be case dispositive for you and your client and career ending for your expert witness.
- Opposing counsel is likely to fish for information to use against the expert. Your expert should understand that his role is to answer the questions posed truthfully and completely. His role at deposition is not to volunteer potentially damaging information that was not called for in the precise question asked. Remind your expert that this is a deposition and not a chat session in the faculty lounge or a cocktail party conversation.
At a minimum, assure yourself that your expert understands the following:
- Expert witnesses are to tell the truth. This is their legal and ethical duty.
- Listening skills are as important or more important than communication skills during a deposition. Your expert needs to learn to focus like a laser beam on the precise question asked. The authors often recommend that experts try to picture the question in written form on a whiteboard. The authors’ independent research has shown that few expert witnesses can precisely repeat a deposition question immediately after it is asked. Test your expert on this. Keep asking questions and then ask him to repeat the question back to you, with all the nuances. To help diagnose how well your expert listens we find it helpful to ask, “How much are you being paid for your testimony here today?” If the expert does not respond with, “I am not being paid for my testimony, I am being paid for my time,” you may have work to do regarding your expert’s active listening skills. You can also try, “Do you know what time it is?” The answer to this question should be “yes” or “no,” not the current time.
- Your expert and opposing counsel are not shooting the breeze in the faculty lounge. This is not a casual conversation with a colleague. Every word spoken is recorded by the stenographer. Your expert is to answer the questions posed truthfully and completely but he is not under a duty to volunteer damaging information. When he has finished answering the question truthfully and completely, he should stop talking. The authors call this common problem “learning to put a period on the answer.”
- The deposition is not a closed-book examination. If your expert is asked a question and needs to refer to a document prior to answering, he should do so. Explain that it is a much better practice to get in the habit of looking up facts or details and getting the answer precisely correct, as opposed to guessing, estimating, or speculating. The expert’s file should be very well organized so that he can find what he needs easily. It is very frustrating for your expert to fumble through his file in an attempt to find a crucial piece of paper or document. All this does is increase the expert’s anxiety and reduce his effectiveness at the deposition.
- If he doesn’t know or can’t remember, the expert needs to say so. Many experts mistakenly feel that they have to know everything. Explain that if you could dig up Albert Einstein, a good lawyer would be able to pose to him endless questions that he wouldn’t know the answers to. The same goes for remembering. If your expert doesn’t remember, he needs to say so.
- Lawyers often asked unintelligible questions. This is especially prevalent where expert witnesses are concerned. If your expert is asked a confusing or unintelligible question, his answer should be, “I don’t understand the question” or “Could you rephrase that?” Your expert should understand that he should neither answer a question he doesn’t understand nor should he help a stumbling lawyer reformulate the question.
5. Areas of Concern: Counsel
One of the most valuable and challenging portions of preparing your expert is for you to take a long, hard look at the vulnerabilities and issues facing your expert. You, or the person preparing your expert, will want to take a step back and look at the forest as well as the trees. Your ability to identify these issues and areas of concern is an integral part of the deposition preparation process. Having a new, or different, lawyer or consultant assisting will often provide a fresh and independent perspective and may pay significant dividends.
6. Areas of Concern: Expert
It is essential to ask your expert what specifically, if anything, she is concerned about. There are two benefits to this. First, the authors have found that many of the areas of concern experts have are unfounded and easily fixed. For example, many experts are greatly concerned about fee questions or questions about past cases, which in most instances are very easy to prepare for. Second, your expert will be able to point your attention to potential problem areas you may not have been aware of, for example, technical issues regarding the expert’s qualifications or opinions.
7. Mock Deposition
It will be up to you to decide exactly how you will prepare your expert witness for the case at hand. The majority of your session is likely to be mock questioning.
8. Explain How Your Expert Witness Should Prepare on His Own
Although a preparation session with you is extremely important, most of an expert’s preparation time will be by himself. Ideally, the expert will prepare by himself before the session with you so that your prep with the expert can be more meaningful and any subsequent self-prep can be just a review. Successful experts set aside sufficient time to prepare alone. Encourage your expert to prepare thoroughly and make it clear that you feel that it is a wise investment of your client’s money to pay your expert for his diligent preparation. This preparation should involve:
- An exhaustive knowledge of the facts in the case, including names and dates,
- Thorough knowledge of the expert’s CV,
- An intimate and complete familiarity with any reports or other documents the expert has authored or signed in the case,
- Personally touching every piece of paper in the file,
- Organizing the file so the expert can access information quickly and easily even while under great stress (binders and tabs or an indexed PDF help),
- Thinking of the most difficult questions and being prepared to truthfully and artfully reply to them, and
- Being able to concisely and cogently express and defend each and every opinion the expert has expressed in the case.
The Facts of the Case
Your expert needs to completely master the important facts of the case. These facts include names and dates. Remind your expert that an opinion is only as good as the facts upon which it is based. If your expert gets the facts wrong during the deposition, his opinion may become worthless and his reputation and marketability as an expert witness may be severely damaged. The only way for your expert to master the facts of the case prior to deposition is to do his homework and prepare thoroughly.
There are many advantages to mastering the facts. The expert can fall back on the facts when asked a difficult question and can recognize a question that is not based in fact. Due to his well-founded opinions, the expert will make a powerful impression on opposing counsel. One of the main goals of opposing counsel is to size up the expert as a witness and determine the impression he is likely to make in front of a jury if the case goes to trial. Thoroughly prepared experts are likely to make a very good impression in front of a jury. This fact will not be lost on opposing counsel.
Review Important Dates
Your expert witnesses should review the crucial dates in the case. Many commit these dates to memory. These dates include the following:
- When the expert was first contacted by counsel,
- When the expert was retained as an expert,
- 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.
Remind your expert that accurate testimony regarding dates greatly increases his credibility. Failure to keep the relevant dates straight will damage his credibility.
Know CV Cold
Your expert should expect to have the contents of his CV carefully probed at deposition. As part of the preparation process, it is crucial for your expert to update and fact-check the accuracy of his CV carefully and to be intimately familiar with the contents of his own CV. Failure to do so can result in needless damage to your expert’s credibility that could have been easily avoided through proper preparation.
Know Their Report Cold
Experts simply must know their own reports or declarations cold. Failure to do so is a mistake and will result in avoidably ineffective deposition testimony. A thoroughly researched, thoughtfully reasoned, and well-written report can be of invaluable assistance in preparing to testify.
If Your Expert Did Not Write a Report
With increasing frequency, experts who have not prepared a report, designation, or declaration are being deposed. Experts with no report, designations, or declarations will need additional time and assistance during preparation. They will likely need to be reassured through practice that they can excel at their deposition despite the lack of a report, designation, or declaration.
In cases where no report or declaration has been prepared, you will want to specifically address the following during your preparation session with the expert:
- 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 she expects to offer at the trial?
- What other aids, if any, can the expert bring to the deposition?
In the authors’ opinion, the benefits of encouraging your expert to bring some of the above items to a deposition outweigh the risks of these materials being available to opposing counsel. Your expert will want to articulate all her opinions and the reasons therefore. The items mentioned above can greatly assist in that regard.
Your Expert’s File
Suggest that your expert touch every piece of paper in her file prior to being deposed. This helps your expert to be familiar with the file. It also serves to check whether the file contains any extraneous information.
Also suggest that your expert make sure that the file is well organized. It is preferable to place the file into three-ringed binders that are tabbed and have a table of contents or to organize it electronically with an indexed PDF. Having your expert organize her file serves two important functions. First, it allows her to quickly locate documents she may need to refer to in the deposition. Second, it gives the impression to opposing counsel that your expert is diligent and well organized. Remember that opposing counsel is sizing up what kind of an impression your expert is likely to make in front of a jury. An expert with an organized file is likely to make a much better impression than one who arrives with a sloppy, disorganized file.
Know How Much They Have Been Paid
Prepare your expert to discuss fees and billing. Fee and money questions are easy for experts to handle if they are prepared. Experts should know:
- 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, and
- The percentage of their work that is for plaintiffs and for the defense.
Questions Counsel Is Likely to Ask
As part of the pre-deposition conference with you, your expert will likely go over some or most of the questions he is likely to be asked. Your expert should also do this as part of his own preparation. The preparation process should consist of anticipating the questions that are likely to be asked and thinking about the truthful and artful answers that he will provide to each of these questions. The best experts anticipate the questions they will face at deposition and think about their responses. It can be helpful to provide your expert with a heads-up of the 10–20 most important questions that you feel he should be prepared to answer. An important part of the art in preparing your expert witness, especially where time is an issue, is figuring out the questions your expert should be most prepared to answer at deposition.
The Expert’s Opinions
First and foremost, an expert needs to be prepared to express his opinions in a legally sufficient manner. The expert will also need to cogently explain the bases for these opinions and why he is qualified to give them. It is often helpful to suggest that your expert prepare these responses using a headline/bullet-point methodology.
The expert witnesses who generally perform best at deposition are those who are thoroughly prepared. Preparation is a great opportunity and equalizer because it is to a large extent within the control of you and your expert witness. If the expert works diligently with you and on his own to prepare, he will be far more likely to excel at his deposition.
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.