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March 13, 2017 Practice Points

Using a Consulting Expert’s Assistance to Take Effective Depositions

A good consulting expert can help you prepare for deposition success.

By Jonathan Couchman

Consulting experts can be used to assist attorneys in taking more effective and useful fact and opposing expert depositions. In many cases, the most helpful and valuable time spent by your consulting expert during the engagement is spent preparing for and assisting with depositions. A significant benefit of using a consulting expert instead of a testifying expert is that in all but the most unusual circumstances, the work product (and even the identity) of your consulting expert is shielded from discovery.

Preparation is the key to a productive and efficient deposition. One of the axioms of John Wooden, the legendary college basketball coach who guided UCLA to 10 national championships, is that failure to prepare is preparing to fail. This philosophy applies not only to March Madness, but also to taking effective depositions. A good consulting expert can help you prepare for deposition success.

Most likely, you hired your consulting expert because of his or her specialized knowledge and experience, often with respect to a particular industry or profession. Meeting with your consulting expert prior to taking depositions is a great way to collectively discuss what questions, issues, data, or facts each of you believes are important to the case. Your consulting expert can also provide assistance with drafting questions as well as preparing exhibits for use at the deposition. Particularly when taking a deposition on a highly technical subject or detailed financial information, a dry run with the exhibits you plan to use can preempt problems that may arise at the deposition. For example; do you have the right document? Is the print large enough and legible? Do you need a digital copy in native format to see relevant formulas (such as in Excel)? Are there other documents referenced on your exhibits that you might also want to have ready just in case? Working with your consulting expert to clearly hone in on the goals and objectives for the deposition, as well as resolving any administrative issues with exhibits, will lead to a much more focused and efficient deposition.

Your consulting expert can also provide valuable assistance during your deposition. Your expert can help formulate on-the-fly follow-up questions, provide you with a better understanding or interpretation of your witness’s responses, and also help you recognize when the witness may not have even answered your question at all. Remember to take your time and to take advantage of the setting and structure of a deposition. Need time to digest your witness’s testimony or gather your thoughts for your next line of inquiry? Take a break and regroup with your consulting expert in the hall or simply lean back from the table and whisper with your expert. The transcript doesn’t reflect your conversation and the time spent honing your next question with your consulting expert often obviates the need for several rounds of back-and-forth with the witness as you both struggle to understand each other.

One of your goals for every deposition should be to have a clear and clean record that can seamlessly support cross-examination and potential impeachment at trial. If you have to read aloud three pages of a transcript, then your impeachment probably isn’t effective, especially if the judge or jury has to wade through sections of broken or confused testimony that distracts from the point you are trying to make. Your consulting expert can help you avoid a messy record by helping manage and navigate exhibits during your deposition. Using detailed directional indicators with your witness can greatly clean up your transcript. For example, direct your witness to a particular page or Bates number of an exhibit; a paragraph or section number; the top/bottom/left/right; or row, column number, or cell of a spreadsheet. You should strive to create a transcript that can be clearly followed by a reader not present at the time of the deposition, which includes the ability to easily navigate to where and what the witness was looking at when testifying.

Your consulting expert can help prepare you achieve a productive and efficient outcome with both strategic and tactical assistance prior to and during your deposition. Working closely with your expert will allow you to unlock the maximum benefit he or she can provide at one of the most important stages of your case.

Jonathan Couchman is a managing director wih Veris Consulting Inc. in Reston, Virginia.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).