This video is part of my continuing education series on expert witness testimony. This is one of several addressed to you, the deposing attorney, to point out strategies and tactics for taking effective expert depositions.
Some are larger strategies and some are more specific tactics. Here they are:
One… a good deposition gets to the core of the issues that the expert has analyzed. The lawyer’s job is to force the expert witness to state the expert opinion in basic terms….
…to gain a complete understanding of the expert’s analysis,… what documents and information were provided,… what assumptions were made, and what conclusions and opinions have been reached.
Two… importantly, good lawyers understand that an expert deposition is a two-way street…. Everything the lawyer does has to be done without showing your hand, disclosing your litigation strategies or arguments against the expert. More on this in a minute….
Three… in anticipating the expert deposition, I want to remind you not to fear your lack of substantive knowledge in the expert’s area… it’s not your deposition, it’s the expert’s deposition…
In my experience, which includes giving about 600 depositions as a financial expert, the best depositions of me were taken by the somewhat “un-knowledgeable” lawyer… the detective columbo – dating myself – …. The lawyer who appears to be a little slow, but really is the smartest guy in the room. (slowly…) he just wants to keep exploring, until he understands what the expert did.
The worst depositions of me – I’m a financial witness – are taken by the young, hard-charging mba or cpa/lawyer who wants to drill down on the technical details of discount rates or capitalization rates, or some esoteric point of my financial analysis….
I laugh about this because even if that lawyer understands what he’s asking about, the jury won’t likely understand the subtleties of the issue.
So… don’t fear your lack of substantive knowledge…. You are a questioner and a listener… you don’t need to be the expert.
Let me turn to some tactics to consider in advance of the deposition….
Four, if you have been provided with a complete expert report that you understand, consider not even taking the deposition of the expert witness.
This is a particularly good strategy if you believe you have a clear understanding of some weaknesses in the expert’s analysis;
Taking the expert’s deposition may serve to educate the expert about the weaknesses, when the better strategy may be to surprise him or her with a weakness on cross-examination at trial.
And, if this is going to be your strategy, be mindful of not educating your own expert to these weaknesses before your expert’s deposition, or the weaknesses may be disclosed by your own expert.
Five… another thing to think about in your planning phase, is your focused deposition strategy.
I mentioned earlier that depositions are two-way streets, and the lawyer may be giving up valuable information if he or she isn’t careful. But, if you are posturing your case for settlement, you may want to unload your best arguments on the expert in deposition to show everybody what your side has in reserve.
Alternatively, if trial is anticipated, the good lawyer needs to hold back.
Depositions are losing propositions for experts, by definition…. The expert gives up information… they show their hand…. They bare their souls….
But lawyers can also lose in the expert deposition… by arguing, by digging too far into weaknesses in the expert’s analysis,… by showing the strengths of the lawyer’s arguments against the expert.
If trial is anticipated, good lawyers hold back in the expert deposition.
They try to put the onus on the expert without showing any strategies of the case.
…too many lawyers just can’t resist arguing when they see a soft spot in the expert’s analysis, but this only serves to show your hand and educate the expert to be more ready for you at trial. The experienced lawyer knows how to hold back.
By focused deposition strategy, I mean, what is your goal? … is it to learn opinions? … to box the expert in? …. To evaluate the strength of the person as a witness?… Or to explore for weaknesses in the analysis?
Give thought to your deposition objective… don’t just have a conversation, and be mindful that you can “lose” by showing your strategic hand in the deposition.
Six… still in the preparation phase, if your litigation budget will possibly allow it, consider taking a video deposition of the expert’s testimony.
Video depositions are much more intimidating and effective than transcribed depositions…
On video, the expert is forced to testify as though it’s a trial, with complete and polite explanations of complicated subjects.
In a transcribed deposition, the expert can be much more guarded and glib than he can be in a video deposition.
Videos are definitely worthy of consideration.
Seven… now, before the deposition – get the expert’s entire file, including billing records and all correspondence… hopefully a few days ahead of time.
Of course, you’re going to review the file so you have an understanding of what to expect in the deposition…. What you want to “carefully” inquire about (more on that later), and what the expert’s opinions will be.
But, even if you don’t have time to go through the file, put post-it notes on the side of it…. That’s very intimidating to the expert at the beginning of the deposition.
And of course, your preparation will include:
A little reading and research in the substantive area of the deposition so you have a general knowledge of the technical area, and…
Talking to your expert about the subject, the anticipated testimony of the opposing expert, and some information about the opposing expert herself
Eight…. Getting right to the beginning of the deposition, in the conversation just prior to the deposition itself, don’t give any information to the expert witness about:
Your possible inexperience with this particular subject, or
A weakness in your background, for instance: “My undergraduate degree is in philosophy…”, or….
“I’ve never taken a bio-mechanical engineer’s deposition before…”
Another minor point: don’t disclose your estimate about the length of time the deposition will take… you can say “you’re simply not sure until we get into it.”
There is simply nothing to be gained by “giving up” any of this information. If anything, it may serve to relax the expert and take some of the pressure off him or her. There is no advantage to your client to doing that.
You’re in control; don’t give up any of that control with casual comments or small talk just prior to the deposition.
Nine… in your preparation, you’ll benefit by thinking of the expert deposition like a law school outline. Your job is to present the blank outline, and get the expert to fill it in, complete with the sub-points, the sub-sub-points, and the sub-sub-sub points.
You want to force the expert to present his or her opinion in an organized, understandable manner.
In subsequent videos in this series, I will share strategies and tactics to use during the expert deposition to maximize your effectiveness for the benefit of your clients.
