While tempting to skip, preparing your expert for deposition, and direct and cross examinations is necessary. Charles Ehrlich, an insurance attorney and executive who moved into the expert side, discusses how experts initially may view these types of testimony, and emphasizes the importance of ensuring your expert is ready:
… the next biggest thing that I learned was about depositions. You have this sense that you are the expert and you are writing your report. You are giving a sincere, honest opinion and you are going to get deposed. They are going to just ask you questions about this sincere, honest opinion. Very often the lawyers are there just to make a bozo out of you and to get you trapped. They have a lot of trick questions and ask a lot of generalization questions that you theoretically cannot disagree with that will then make you look like your opinions are dumb. You must prepare for a deposition. You have to insist that your lawyers take you through an adverse deposition. ‘What were the questions that you guys would ask me if I were the opposing witness?’ Otherwise, you are just not preparing yourself for the worst-case situation.
I was thinking of Tom Brady, a famous football player, you might have heard of him. When Tom Brady goes into a game, he does not just read the playbook. He gets in there and they run plays and they have guys chasing after him, trying to knock him down. That is what a deposition is like sometimes, but it is very hard to get the lawyers to do this. The lawyers will say, ‘Oh, you have been deposed before. You know what you are saying. Here are the themes that we want to do.’ Back in my very early days of practice, we had an expert who was an expert on the issue of water and corrosion of pipes. By the time his deposition was over, he had never heard of pipes, because we had not prepared him for getting beaten up.
Many attorneys who call us request previous testifying experience. There are a variety of good reasons to request it, but one of the less-good reasons, as Ehrlich alluded to, is the notion that if the expert is already experienced, then preparation for cross-examination may be skipped. Dr. Eric Cole has had difficulties with this, and discusses why mock crosses are invaluable to him:
It is interesting because most of the time, I do have to ask for it. Going into a trial, attorneys will always prepare you for your direct, but I often have to ask and be very persistent in preparing for the cross-examination. We know when you are going to trial, the direct is very straightforward if you have done trials before, and I have done many of these. It is easy. You want to ensure you know what you are… thinking about and the angles. Of course, I always read my deposition transcripts, and there is prep work I can do, but I will always push back and say, ‘Can we please have another attorney do a mock cross to make sure I am ready and consistent?’ To me, the most significant thing I found, which is easy to say, but hard to do when you are in the courtroom, is you want to control the tone, voice, and pace you are using during your direct to be the same as it is for the cross. It is easy to say but hard [to do] because you often react with the jury. It is not what you say but how you react. When they ask you a question on costs, and you [hesitate] but give a great answer, they immediately think [about it]. The mock cross is much more about me being able to keep the same tone and practicing keeping the same expressions and the same answers, and the same body language as opposed to what they ask in the mock. That is why I like the mock. Essentially, I joke. I want somebody to be aggressive and yell at me, and I want to stay calm, cool, and collected. To me, that is more the practice of the delivery than what you have to say.
Dr. Douglas Kalman notes that staying in communication with your expert, letting them know in advance what you believe the other side will hit hard on, and taking the time to go over highlights just prior to heading in is also important:
One thing that has always been a common theme is if you are going to appear in a deposition or court case you have all the communication with the lawyers and you have everything that you have done, but either the night before or the morning they meet with you for dinner, coffee, breakfast, whatever, they go over the highlights to prepare. I make sure that I have good communication with the lawyer because they always have a good feeling and know what the other counsel is going to primarily be asking. I make sure I am well-read on the topic. That translates to when you are testifying, whether it is a deposition or court.
Mike Slinn recalls his first time as an expert at an international tribunal, where the team of attorneys was particularly good at setting him up for success:
In this particular case, these attorneys were outstanding. They had a quarterback, the guy who was calling the shots, at this law firm who was one of the top guys around and he was not shy about sharing his experience and his advice. I learned a tremendous amount from these people. […] There were seven experts on our side and there was one expert, [me], who would speak for the combined opinion of all of us. [The expert for the other side] and myself were brought before the tribunal of five and they fired questions at us and we had an opportunity to respond free form. We would start by letting each other speak, and then… we would get into interrupting and discussion, and this is what the tribunal wanted. They wanted [to get to the real truth] and they were just going to grill us until we believed something was right. […] You had to be fast on your feet and confident in your facts to be able to say things. The other expert was over-confident. He was confident to the point of being cocky, and he said some really stupid things and I capitalized on that. […] It was a unique opportunity, so I think being a musician and being comfortable performing to an audience, which I have been doing for 50 years, stood me in good stead; because to me it is another audience and I have got my material. I practice and I know it. We were up until 2:00 in the morning going over the material. The attorneys on my side had their mini tribunal […] I failed a lot in front of them, but that was okay because they would coach me. When the real thing came it was easier than what they had put me through. They deliberately over-practiced, and that is the way to do it. Nothing succeeds like excess.
Depositions and cross examinations come in all styles, and prepping your expert for what to expect keeps them from falling into potholes just from experiencing a method that is new to them. Dr. W. Richard Laton recalls some of the depositions he has been part of:
Some of them are just there to get you to think about things before you speak, which as a teacher is difficult to do but also try to think two moves ahead. Think about where the other side may be heading so you can either try to guide the topic to where you want it to go versus being guided to where they want you to go. Every deposition is somewhat different. Some are more combative. Others are trying to make [you come to] the other side. Trying to become your friend. As my lawyer pointed out, he is not your friend. They can kind of go from mean to nice.
Dr. Laton has also been pleased with guidance he has received over the years that helps to keep him calm, and has helped him develop well phrased answers over the years:
The other thing that was pointed out to me is I was always panicking about every single question. They would ask, ‘What is your name? What do you do for a living?’ These are just basic questions that you answer every day. As soon as you hesitate, they gotcha. [My attorneys] said just answer the question and move on. You can answer it simply. There is nothing they can do to change it but if you start to hesitate, they go, ‘Oh, we got them.’ That has been one of the things several lawyers have told me over the years. The other thing with doing expert witness work is you read many depositions. Not just yours, but others. From that, you get to learn how to phrase things. Some answers are better worded one way or another. It is the same answer, but if you say it one way, it means something different.
Some attorneys go farther in prepping their witnesses. Attorney John Trimble uses an extensive team, but is careful to keep his client appraised so that there aren’t any billing surprises:
I use PR consultants and jury consultants to prep witnesses […] it is part of the thematic preparation of the case. I like to have a PR consultant and a jury consultant, particularly a jury consultant looking over my shoulder remotely because I do not want attorney–client privilege to be an issue. I often like to videotape my witnesses as I prepare them to give depositions or as I prepare them to testify at trial. I may want the jury consultant to watch the video and give me input as to how I ask my questions, the words I use, and the order in which I ask my questions, so that I can best prep my witness to give a truthful and credible testimony that fits the theme that we have.
There is an expense involved in hiring consultants. Part of the lawyer’s role is to make sure that the client understands from the beginning how they are going to use the consultants, not only at the beginning but throughout the case, and how important it is. We are living in an age right now of tight legal budgets and it is not an easy sell because of the expense. The benefits are so critical that the lawyer must make the case to the client, ‘Hey, I need these people and here is why I need these people.’ You just cannot assume that the client is going to go along with it. They will push back unless you convince them that this is critical.
A well-prepared expert is a dependable expert, and one who will perform even if they aren’t enjoying the experience. Expert Kevin Quinley puts it poetically:
[…] Even with all that, deposition and testimony is an anxiety-producing experience, even if you have done it many times before. If you are not nervous or do not have some anxiety then good for you, but I say everybody has butterflies. The key is to make them fly in formation on game day, and I say I enjoy depositions the way I enjoy beating my head against the wall. It feels so good when you stop.
Round Table Group is here to help you find a dependable expert. For over 25 years, we have 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.