By James J. Mangraviti, Jr., Esq.
Lawyers conducting an expert witness deposition will seek to pin down which opinions the deponent expert witness will and will not be offering at trial.
The expert witness may try to leave themselves a little bit of wiggle room when answering deposition questions about the opinions they will and will not be providing at trial. A lot depends on the context of the case and the specific expert witness deposition questions asked. Expert witnesses at deposition often cite as a rationale for their refusal to be 100% pinned down on what opinions they will and will not be offering the following two reasons:
- Things may change prior to the trial; and
- The expert may be asked unanticipated questions by opposing counsel that call for additional opinions.
Please consider the following example of expert witness deposition questions on opinions that will and will not be proffered at trial.
Example: Locking down the expert regarding opinions that he will not be offering at trial
Q: Are you going to offer opinion testimony with respect to the use of side impact air bags or side curtain air bags?
A: I don’t think so. We haven’t talked about it. I think I wrote in my opinion that it doesn’t have them.
Q: So, no opinions with respect to side curtain air bags or side impact air bags—
A: Right.
Q: —other than to say this vehicle didn’t come equipped with it?
A: Yes, right.
Q: You’re not going to say the vehicle is defective because it did not come equipped with side curtain air bags?
A: Correct.
Q: Am I correct?
A: You’re correct. I’m not going to say it would have saved this guy’s life.
Q: You’re not going to say it would have saved this guy’s life?
A: Right.
Q: You have not done any testing with respect to side curtain air bags, I take it; is that right?
A: That’s correct.
Q: So I won’t hear at trial you testify with respect to side curtain air bags or roof rail air bags or some variation on that theme, that they should have been employed in this 2015 SUV and if employed would have prevented or mitigated Mr. Larson’s injuries?
A: Correct.
Q: Are you going to offer any opinion that those seat belts as equipped in the ‘15 SUV are defective?
A: No.
Q: Aside from glazing and roof design and performance, are you going to express opinions in any other subject areas at the time of trial?
A: Not directly, no. There are other things. You asked me a lot of questions about occupant kinematics and injury mechanisms and whatnot. If asked, I’ll answer to the best of my ability the things that I’ve said so far here, but I’m not going to advance anything else.
Counsel in the above example relentlessly tries to pin the expert down on precisely what he will and will not be offering his opinions on. Note, however, how the expert leaves himself a little wiggle room when replying. He states, “I don’t think so. We haven’t talked about it…,” “Not directly, no…,” and “If asked, I’ll answer to the best of my ability….”
James J. Mangraviti, Jr., Esq., has trained thousands of expert witnesses through seminars, conferences, corporate training, training for professional societies, and training for governmental agencies including the FBI, IRS, SEC, NYPD, Secret Service, and Department of Defense. He is also frequently called by experts, their employers, and retaining counsel to train and prepare individual expert witnesses for upcoming testimony. Mr. Mangraviti assists expert witnesses one-on-one with report writing, mentoring, and practice development. He is a former litigator who 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. Mr. Mangraviti has designed dozens of expert witness training programs and has personally taught experts in a group setting over 250 times since 1997. He is the co-author of thirty books.
