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 – preparation is always a good idea. Round Table Group approaches this advice having helped countless legal teams find their ideal expert witness. While we ourselves are not practicing litigators, our suggestions come from our experience working with experts. This is not, and should not be considered, legal advice.
Never assume your expert is so practiced at being an expert witness that they do not need preparation. Instead, do everything you do with a first-time expert, usually including reviewing appearance and demeanor, practicing questions from opposing counsel, and thoroughly reviewing case facts.
If applicable, remind your expert about the rules for the court you are in. For instance, in federal court 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 expectations need to be clearly explained to the expert.
As always, 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.
Establishing What’s Discoverable
Not all experts understand what is and is not discoverable, so this should be outlined to them. For instance, it’s a good idea to go over note-taking best practices, such as minimizing notes and written reports that state opinions as generally these notes are discoverable. Many litigators also coach their experts on how to best answer general questions regarding verbal discussions. For instance, if asked about these during a deposition, an expert may be coached to answer something like, “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 a basic understanding of the ground rules is important for all experts.
Reviewing Deposition History
If available, consider reviewing previous depositions with your expert, ideally their own. For example, if your expert has been deposed in the past, it can be illuminating to review their deposition transcript and help them identify potential performance issues that can be improved upon such as poor listening skills, rambling sentences, or responding to non-questions. Additionally, reviewing previous depositions performed by opposing counsel may help set the expert’s expectations for what they should expect.
Expected Lines of Questioning
Help your expert be ready for expected lines of questioning. You probably want your expert to truthfully, clearly, and directly answer questions posed by opposing counsel without falling for trick questions or tactics and traps. To achieve this, it helps if expert witnesses are prepared in advance and have practiced their answers, particularly for difficult questions you have identified.
An expert witness’s performance at deposition dramatically impacts the outcome of a case, and we hope these reminders help you make your expert appear as their most reliable, trustworthy selves to provide strong support for your case.
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 202-831-3843 for more information or start your expert search now.