The expert witness deposition is widely regarded as one of the most critical testimonies during a lawsuit. A successful deposition can dramatically impact a case, which is why both parties focus on strategizing for this stage of litigation. Opposing counsel is looking for an opportunity to expose holes in an expert’s opinion and credibility, so legal teams should always consider how to best position their expert.
Many unsuccessful expert witness depositions could have been prevented with the right preparation and support. This can be said for even the most seasoned experts, as it should never be assumed preparation is not required. Round Table Group approaches this advice having helped countless legal teams find their ideal expert witness. While we ourselves are not practicing litigators, our perspective comes from our experience working with experts day in and day out.
Preparing your expert witness for deposition should be the same as client preparation. Addressing appearance and demeanor, practicing questions from opposing counsel, and thoroughly reviewing case facts are all critical parts of this process.
The primary difference between these two processes is the lack of attorney-client privilege when working with an expert. Nothing discussed is privileged and everything can be reviewed by the opposition. This means expert notes are discoverable. To prepare accordingly, experts should be briefed on note-taking best practices, such as minimizing notes and written reports that state opinions.
Federal Rule 26(a)(2) establishes a written report must be prepared stating the expert’s opinions and conclusions in federal court. However, in most state courts no report is required. These details need to be clearly explained to the expert.
General advice and reminders can go a long way, such as telling the truth, active listening, and focusing on the actual questions being asked. When experts approach deposition with an understanding that this is not a friendly conversation, and their role is to answer questions truthfully and articulately, they are more likely to succeed. Experts shouldn’t jump to answer confusing questions and should be clear when they don’t know or don’t remember something.
Everything discussed with your expert witness is discoverable, so all communication should be carried out in alignment with this reality. Many litigators coach their experts on how to best answer general questions regarding what they discussed. If asked about this during a deposition, an expert will know how to provide an answer such as, “We discussed the opinions I have and the basis for those opinions.”
There is no room for instruction or coaching during the deposition, so entering the process with this understanding is extremely important. Even after leaving the room for a conference with an expert, the specifics of the conversation become discoverable.
A common tactic implemented by litigators is to instruct experts on how to answer a specific question that occurs at the conclusion of their deposition. It is common for opposing counsel to ask an expert, “Have you set forth all of the opinions you will reach in this case?” By answering this question with, “I cannot be certain” your expert creates room for a rebuttal of the opposing expert and additional work, if needed.
If your expert has been deposed in the past, it can be illuminating to review their deposition transcript. This helps identify potential performance issues that can be improved upon. Such a review can reveal if an expert has poor listening skills, uses rambling sentences, or responds to non-questions. Additionally, these transcripts may provide helpful insight regarding opposing counsel. Reviewing opposing counsel’s style, approach and questions will inform you how to best prepare your expert for questioning.
The way to excel during deposition is to truthfully, clearly, and directly answer questions posed by opposing counsel without falling for trick questions or tactics and traps. To achieve this, expert witnesses should be prepared in advance with the lines of questioning expected to arise. Areas of perceived weakness are bound to be explored by opposing counsel, so identifying these areas for your expert can be invaluable to their preparation.
An expert witness’s performance at deposition dramatically impacts the outcome of a case. Preparation will play a role in determining the expert’s performance, which is under your legal team’s control. These tips will help you avoid the risks associated with poor preparation.
For more than 25 years, Round Table Group has helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Round Table Group is a great complement to any litigator’s quest for an expert witness and our search is always free of charge. Contact us at 202-908-4500 for more information or start your expert search now.