Expert witness testimony is sworn testimony given by a witness with sufficient background, education, and experience to legally qualify as an expert in his or her field. It is allowed in situations where the testimony will assist the trier of fact – a judge or a jury – in deciding an issue that is beyond the common experience of people.
At the outset of this presentation, let me state a foundational premise of this video: 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.
A deposition upon oral examination is a pretrial discovery procedure used to obtain facts relevant to the litigation. The witness is asked questions under oath by an examining lawyer, usually in the informal setting of a conference room in the opposing attorney’s office.
The questions and answers are transcribed by a court reporter verbatim, and many times the deposition is videotaped by a certified videographer. Because of liberal discovery rules, almost any question can be asked during the deposition.
While the official purpose of a deposition is to obtain relevant facts, the practical purpose of an expert deposition is broader. Recognizing that 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.
This will include anything to discredit or disqualify the witness from testifying on an issue. For instance, statements of agreement to particular facts that benefit the opposing side, or concessions that the assumptions made by the expert are not perfectly supportable.
Another purpose is impeachment of the witness: If testimony at trial is different from the deposition testimony, the witness can be impeached with the deposition transcript at trial.
Finally, a deposition intends to solidify the totality of an expert’s opinions during discovery so the opposing side knows every conclusion the expert will testify to at trial. This last purpose is critical for the expert to understand because failure to include an important opinion in the deposition testimony will likely lead to exclusion of the opinion at trial.
Generally, a deposition is a losing proposition for an expert. This is critically important to understand. Remember the deposing attorney is trying to obtain any information that can be used to discredit, impeach or disagree with the expert’s opinions, the expert should know the strategies and tactics of the deposing attorney in order to minimize the harm suffered in deposition.
On that note, I refer you to another presentation in this series entitled “Taking Effective Expert Depositions.” It’s directed to lawyers, but you should review it to learn the opposing lawyer’s strategies. That knowledge is essential to successfully defend yourself in depositions.
Now I’ll get to the heart of this presentation: the Ten Commandments for effective expert deposition testimony, or any witness testimony for that matter, in a deposition.
I’ll state the commandment, or “rule,” and then give a brief explanation of each one.
- Tell The Truth, But Answer Only The Question Asked
Tell the truth, but answer only the question asked. Do not volunteer information and avoid long, narrative answers. The more topics that you bring up in your answer, the more questions the examining lawyer will ask. The deposition is an opportunity for the opponent to obtain information, it is not the trial. And, it is not an informal conversation where you will succeed by providing detailed explanations of your work. Answer only the question asked.
- Think about the question before answering it – don’t feel rushed.
This will give you the time to formulate an appropriate response. It will also give your party’s lawyer time to analyze the question and interpose any objections. Remember that the examining lawyer will attempt to develop an informal, but rapid conversation to elicit from you as much information as possible. Watch out for an examiner who attempts to catch you off-guard with a casual, friendly manner or flattering questions.
- Don’t answer a question unless you understand it.
If a question is unclear, ask the examining lawyer to repeat or rephrase the question or have the court reporter read the question back. Be mindful of your lawyer’s objection that the question is vague; he or she might be telling you that there’s some reason to be careful of the question. You might not understand it.
- Do not guess or speculate.
If you don’t know the answer to the question, say so. If you’re not sure, qualify your answer by saying “approximately” or similar qualification.
Beware of hypothetical questions. Before answering a hypothetical, make sure that all essential facts or assumptions are included. Remember that at trial, a portion of the deposition may be taken out of context and used to impeach you.
- Do not bring notes, diagrams, books, or other written material to the deposition unless they are required by a subpoena or unless you have been instructed by your party’s lawyer to bring them.
And if you are asked to testify regarding documents or other exhibits, take the time to review them carefully before answering questions about them.
- Listen carefully to objections made by your party’s lawyer.
The objection may be intended to alert you to a trick question or some other problem with the question. If your party’s lawyer instructs you not to answer a question, follow his instructions, even if the examining lawyer threatens you with court sanctions. If you are challenged by the opposition to not follow your client’s lawyer’s instruction, simply state on the record that you are unsure of what to do; you are acting in good faith and you feel obligated to follow your client’s lawyer’s instruction and, of course, if a judge ordered you to answer the question or comply with the request, you certainly would.
- Do not argue or become angry or hostile with the examining lawyer.
Such a reaction will communicate to the examining lawyer a lack of confidence that will be exploited at trial. It may also alert the examining lawyer to weaknesses in your theories or conclusions.
As a general proposition, work hard to maintain a calm, collected attitude during the deposition. I try to always be calm, but I particularly react calmly to more aggression on the part of the deposing lawyer.
- Even if the questioner calls for a yes or no answer, ask to explain your answer briefly if a qualification or explanation is necessary.
However, do not be concerned if your answer does not supply all information which would be required for a complete understanding of the topic. Your party’s lawyer will decide whether to obtain a more complete explanation during the deposition or at trial.
- Watch out for questions which involve absolute terms, such as “Have you identified all of the documents which you have reviewed?” or “Are there any other facts that you have relied upon?”
If possible, provide a qualified answer in the event that you inadvertently failed to identify a pertinent document or fact.
- Do not memorize your answers in advance of the deposition.
Provide a direct and factual response to the questions.
As in life, it is easier to read and understand the Ten Commandments than it is to live by them, but at a minimum, you should review them before every deposition you are called to attend.
I think that knowing the Ten Commandments is Expert Witness 101 and knowing how to apply them judiciously is Expert Witness 401.
In short, you don’t have to rigidly apply every one of them all the time in deposition. Use your judgement.
Finally, recognize that 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, many lawyers aren’t adept enough to accomplish that task.
A deposition is a losing proposition for an expert witness.
If you leave the deposition thinking “I really showed them,” you probably lost the deposition.
Alternatively, if you walk out and say, “They didn’t really understand my analysis very clearly,” you probably did a good job.
This presentation is the introductory presentation on effective expert depositions. Be sure to view the other videos in the Art of Expert Witness Testimony series.