This presentation is the second expert deposition video in the art of expert witness testimony series. The first video is “the ten commandments of effective deposition testimony” and I suggest it as a pre-requisite to this one.
This program is addressed to the experienced expert witness.
At the outset, let me remind you of the foundational premise of all strategies and tactics of the expert’s role in litigation:
The role of the expert witness in a litigation matter / is to perform an unbiased, competent analysis in the expert’s substantive field.
Unlike the lawyer, the expert is not an advocate for the client or the client’s desired opinion; the expert’s ethical responsibility is to be unbiased and to tell the truth.
However, once the expert has competently derived the opinion, the expert becomes an advocate for that opinion and the expert has a professional responsibility to successfully advance that opinion in litigation.
That’s the basis for the strategies and tactics presented in this video, and the expert’s ethical and professional responsibilities outweigh any strategy or tactic of the expert’s role in litigation.
Having said that, however, understand that a deposition is a losing proposition for an expert. The competent expert’s job is to make sure he or she loses the least.
The lawyer’s job is to make the expert bare his soul. The expert doesn’t want to do that voluntarily… an experienced expert should make the lawyer work for it.
And, many lawyers aren’t good enough to get all of that information from the expert – the baring of his or her soul – or at least not good enough to get it without showing the lawyer’s hand.
A sophisticated knowledge of the strategies and tactics of the deposing attorney is essential to the deponent’s ability to minimize the harm suffered by experts in deposition.
In another video in this series, I cover the lawyer’s strategies for taking an effective expert deposition. I strongly suggest you listen to that presentation to understand how to respond to a competent lawyer.
But, back to the expert’s role….
While the official purpose of a deposition is to obtain relevant facts, the practical purpose of an expert deposition is broader.
Recognizing that all of litigation is an argument, the deposing lawyer’s objective is to obtain any information, on the record, that can be used to advance the opposing side of the argument at issue.
In other words, that lawyer is coming after you – subtlely or assertively – challenging every aspect of your competence, your qualifications, your analysis, and your opinions.
The deposition isn’t a casual conversation where you are explaining what you did to the interested lawyer. In fact, virtually nothing that happens during the deposition is important in the moment it happens. It’s only purpose is to create a record of the proceedings for future use.
In contemplating your expert deposition, you should think about the major points of logic in your analysis and practice articulating your rationale for these logical points. This “Practice” should also be extended to weaknesses in the analysis; the expert needs to be able to put his best foot forward on both strengths and weaknesses of the analysis that he or she has undertaken.
Now, an expert’s strategy toward a deposition will be different if the case is expected to settle versus going to trial. This you should discuss with your client’s counsel beforehand.
If settlement is expected based on discussions with the lawyer, the expert’s strategy will be to be more open and expansive in explaining her analysis and opinions. In a settlement strategy, the expert’s objective is to educate the opposition on the strengths of the analysis with less fear of exposing the expert’s opinion to cross-examination at trial.
If trial is anticipated, the expert’s strategy in the deposition should be more closed, with concern for educating the opposition to the subtleties of the analysis and providing fodder for cross-examination at trial.
A third strategy of completely educating the other side may have to be employed if it is anticipated that the opposition is trying to disqualify the expert based on a daubert challenge. In that case, the expert must make a complete record showing that the expert has considered and competently evaluated all relevant facts and applied a supportable, logical analysis to those facts to arrive at a defensible conclusion.
The natural tendency of a knowledgeable person explaining something is to try to clearly and completely explain the subject to the listener. This is not the expert’s job in a deposition, nor is it a wise tactic. The expert’s role is to answer the question asked – only the present question – and answer it truthfully.
The expert’s job is not to educate the uninformed questioner about the subtleties of the analysis that has been undertaken, unless the questioner is smart enough to back the deponent into a corner by asking for precise details of the analysis. And, quite candidly, many lawyers aren’t adept enough to accomplish that task.
The opposing lawyer would like to get the witness to make a statement (or give an answer) that harms the witness’s position and helps the deposing lawyer’s position.
From the opposing lawyer’s perspective, the most effective response from an expert witness is a concise, simple answer (ideally an unqualified “yes” or “no”) to a question that presents a fact or assumption in favor of the deposing lawyer’s argument.
A clear, simple deposition answer to a precise question is the most effective response that can be used against the expert at trial. This is very important for the witness to understand and to try to avoid succumbing to this trap.
(it’s obviously something of a failure or a “loss” if the expert witness gives the lawyer that answer, but if the perfect question is asked, the truthful answer must be given, even if it is harmful to the expert’s opinion.)
Let me cover some specific strategies and tactics for the expert.
1. Always stay calm. // but be particularly mindful of your calm attitude if the emotional heat in the room increases. In my experience, the more emotional the opposing lawyer becomes, the less substance he has to bring to the table. In fact, I am more concerned about the calm, quiet plodder who just keeps looking for more information than I am about the lawyer who is yelling at me.
2. Next… protect yourself: if you get into a difficult situation that you don’t know how to resolve, make sure you make a record that properly states your position. Where this sometimes occurs is when your client’s lawyer instructs you not to answer a question. In fact, that instruction should rarely be given, but it happens all the time. The only time it’s appropriate is if the question seeks to violate a legal privilege, but legal privileges rarely apply to the work of a designated expert. So if the instruction is given, it is frequently wrong.
But then, the witness is put on the spot… the opposing lawyer is grilling you, “are you going to follow this erroneous instruction??” “does this lawyer represent you?” now the witness is between a rock and a hard place…
As a practical matter, you are going to follow your client’s lawyer’s instruction and refuse to answer the question.
In response to this aggressive cross examination, first, stay calm. But don’t hesitate to make a record saying that you are unsure of what to do, but that you are acting in good faith and, of course, if a judge ordered you to answer the question, you certainly would. Make a record that shows your professionalism.
Recognize that you have rights as a witness, and it’s your deposition – you are the one testifying under penalty of perjury.
3. Next point….Remember that the only result of the deposition is a written transcript; the transcript does not show the emotion of the moment.
4. Don’t let the opposing lawyer interrupt your answer. Sometimes the deposing attorney doesn’t like your answer and, in that situation, you are not telling her what she wants to hear. The lawyer may interrupt you with another question or try to cut you off. If that occurs, politely state on the record that you are not finished with your answer and you would appreciate not being interrupted. Of course, you can only do this if you are answering the question asked and not rambling on and on.
5. Personal questions are not really appropriate, but the attorneys have a lot of latitude in inquiring of the expert witness. A proper question only has to be designed to lead to relevant evidence, however. Remember, your client’s lawyer doesn’t really care if you are being exploited; he is only interested in protecting the client.
Here are some examples of slightly relevant questions that lawyers will use to exploit you a bit… your should be aware of them::
Did you consume any alcohol in the last twenty-four hours? (that general question is not appropriate… it’s close, though. It is appropriate to ask if you have consumed any alcohol or taken any drugs that would have any effect on your ability to testify today. So, if I am asked if I have had a drink or taken any drugs, my answer would not just be a “yes” or “no,” it would be: I have not taken any drugs/drinks that would have any effect on my ability to testify today.)
Another question that is often asked is “what do you think about the opposing expert witness?” or, “do you know of dr. Smith’s reputation in the community?”
These are tempting questions to answer, but they shouldn’t be answered. Why? Because they are “no-win” questions. First of all, you are not an expert in “reputations” or “what you think of someone,” so the questions are outside of your area of expertise. Also, they are “no win” questions because, if you say dr. Smith is a great guy, you will hear that answer in front of the jury in trial. If you say dr. Smith is a hack, you’ll never hear it again.
So, when I am asked that question, I very carefully state that I know dr. Smith, but it is not my place or my area of expertise to comment on his reputation. I continue to state that my refusal to directly answer that question should not be negatively interpreted for dr. Smith; I just don’t have an opinion on that question. If I am pushed by the lawyer, I will use the following example: “mr. Jones, I have an opinion about your tie, but it’s not appropriate for me to state that opinion in this deposition and have it considered to be expert opinion because I am not an expert in ties any more than I am an expert in other expert’s reputations or whether they are good guys or good gals.”
A good response to a question that you believe is completely irrelevant is: “if you can tell me what relevant evidence that question might lead to, I will gladly answer it.” questions like, “where were you born?”, “where did you serve in the military?”, or “were you in the military?” do not seek to find relevant evidence and are therefore not appropriate.
My purpose in discussing these personal-type questions is providing the expert with an awareness of the degrees of control in the expert deposition. Some lawyers will begin to push the envelope to gain control of the proceeding. I suggest that the competent expert witness politely push back on these overreaches.
6. There are other questions that need careful responses because they border on “trick” questions. Here are some examples:
One of the best strategies for a deposing lawyer is to push the expert witness “off his page” in the deposition by asking questions that are outside of the witness’s opinion or area of expertise.
Sometimes these questions are tempting to answer because they seem so simple, or supportive of the expert’s client’s position in the litigation.
But beware: there is little upside to answering this type of question and a lot of downside. First of all, if a subject is outside of the expert’s area, he will likely not be allowed to respond to the question at trial, so there was no value in answering the question in a way that was supportive of the expert’s client’s position.
Answering a question outside of the expert’s qualified area / will expose him to cross-examination on background, education and experience in that new subject area, / causing the expert to be diluted in his qualifications in all of his areas of expertise // and being exposed to the challenge of why is he attempting to give an opinion in an area in which he is unqualified? A competent expert will work hard to “stay on the page” of his qualifications and areas of expertise.
7. What about this one…. “have you discussed any weaknesses in your analysis or opinion with mr. Jones, your client’s lawyer?” of course, there are some weaknesses in every argument or opinion, so it is foolish to not have thought about the question and have some answer at the ready. And, obviously, testifying about weaknesses isn’t going to be your strongest testimony, but a competent expert better have something to say in response to this question. I can’t tell you what to say, but I can tell you that you need to think about the question.
8. Next… “what underlying facts, if different, would cause you to change your opinion?” similar to the previous comment about weaknesses, there are certainly some hypothetical facts that would cause an expert to change her opinion. You should be able to list a few hypothetical facts, hopefully unreasonable ones, that would change your opinion.
9. What about this question: “have you removed anything from your file?” the answer to this question should be a clear “no.”
This is a reality that a competent expert should be aware of from the outset of a litigation matter and proper documentation procedures should ensure that all documents are retained and there are no improper notes or margin comments in a file.
When your lawyer tells you in a phone call that the “other side are a bunch of jerks,” that’s just not something that is relevant factual information that you write down in your telephone notes.
What about this question…??? “have you been asked to remove anything from your file?” this is a question that every good lawyer should ask in an expert deposition. Here’s my recommendation to you:
If your client’s lawyer asks to review your file prior to deposition and asks you to remove documents, I suggest you discourage him/her by advising that you will probably be asked the question in the deposition and, of course, you will answer it honestly.
Furthermore, chances are the removal of the document will call more attention to the document and make it a bigger issue than leaving it in the file. If the issue is brought before a court, the document will probably have to be disclosed and the entire attempt to hide it will be foiled. Try to dissuade your client’s lawyer from insisting that any documents be removed from your file.
10. Here’s a question you should anticipate: “have you produced all notes or memoranda of any communications that you contemporaneously took? (if not, why not? Where are they? Did you destroy them? If so, why?)” some experts have the practice of [supposedly] either not taking notes or summarizing them into the file or their report and then destroying them. I find either of these practices to be foolish. First, who among us has such a photographic memory that he can function at a high professional level without taking notes of meetings or telephone calls? And, even if someone does, the practice of “not having any notes” smacks of deception.
If an expert destroys his notes after re-reading them or summarizing them, why is there a need to destroy them, unless the expert is preventing the opposition from seeing them.
I suggest that the more appropriate practice is to be aware that all of your notes will later be produced and, recognizing that fact, be careful how you take them. Don’t write down irrelevant information that shouldn’t be discussed with an unprivileged expert witness. If a lawyer starts talking about litigation strategies and/or weaknesses in the case, remind him or her that this conversation is not privileged we should probably change the subject.
11. One reality is this:… if an attorney is good enough to ask a very precise question to which you don’t like the answer, try to provide an answer with some qualifications in it. That way, it is harder to use the answer in trial to impeach you.
Good lawyers will explore the fine points and subtleties of your arguments. The average lawyer will often allow you to state a more general point without refining it and, if you can get away with answering a question generally (and truthfully), that is your best strategy.
12. I want to get out of the deposition by having put enough substantive points on the record that I can raise them at trial, but I want to get out of there without having to enumerate all the subtle fine points of the argument, if possible.
It’s a balance, however, because you have to get enough of your opinions on the record so you can again state them at trial. Don’t try to be too cute in dodging meaningful questions that seek to elicit relevant information in the deposition.
And, your ethical obligation is to answer questions fully and truthfully. If the lawyer is good enough to ask the right questions, they must be answered. But it isn’t the expert’s job to create the questions for the lawyer.
Let me add one more practice management tip:
If your client wants to attend your expert deposition, call him aside and have a private conversation about the counterintuitive tactics of the expert in a deposition. The client will expect the expert to “Knock the ball out of the park” with deposition testimony. I tell clients that most expert depositions are defensive propositions for the expert and the best thing I can do is get finished without giving out too much information, because the information will be used against me at a later time. The client needs to understand that the deposition isn’t the place to make the precise, subtle arguments that will be made at trial; the best thing that can happen is that I can get out of the deposition without having to completely bare my soul.
It is strategically helpful to have your client understand this before they attend your expert deposition. If you don’t have this conversation with the client, he will be jumping out of his chair, wanting you to throw all these punches and he needs to understand that the deposition is more of a defensive exercise where you are trying to extricate yourself without being too badly beaten up.
In conclusion,…
If an expert finishes a deposition and feels that he has really proved his point, explained himself, educated the other side, convinced the other side of the merits of his opinion, etc. – the expert has probably completely “Lost” the deposition. If, on the other hand, you walk out of the deposition feeling that they “Didn’t understand anything I said,” you probably did a good job.
I hope I’ve helped you negotiate your next expert deposition.