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August 30, 2017 Practice Points

Expert Witness Deposition Preparation

By Peggy Smith Bush

Working with expert witnesses is one of the most interesting aspects of litigation, but preparing for an expert's deposition may be challenging for young, and sometimes not so young, attorneys. Thoughtful preparation will help you go into an expert deposition with confidence.

You do not have to become an expert in the field, but a basic understanding is necessary to elicit and understand the witness' opinions. Your efforts to build a knowledge-base early on will help you formulate questions and put the testimony in context. Give thought to why the other party selected this witness for this case—in other words, what role does this witness play in opposing counsel's overall strategy? Use this opportunity to build the groundwork for cross-examination instead of merely providing a platform for the witness to tell you what he or she thinks.

Review the rules governing expert witness discovery in the appropriate jurisdiction to help ensure that you have received information to which you are entitled. Careful reading of the disclosure and scope of expertise for which the witness is offered is important. Consider whether you have objections or questions. For example, is this witness cumulative of other expert witnesses? Was the disclosure timely? Have you received the expert's report and a copy of file materials? Are you entitled to a more complete statement of the testimony about which the witness will opine? If the expert performed an inspection and/or testing have you been afforded an opportunity to review the results and any data upon which the opinions are based? If not, reaching out to opposing counsel to allow him or her to try to cure a deficiency or motion practice may be necessary.

Selecting core exhibits as you prepare your outline can be an efficient and effective preparation tool. Seeing how the witness' file and your exhibits "look" laid out on your desk in the order of your outline gives you a chance to see how your questions flow and ensure that you have covered the entirety of the scope of the disclosure. From a practical standpoint, if you scheduled three hours for the deposition and your outline and selected exhibits will take at least five hours this is a chance to prioritize and/or revisit the amount of time allotted.

An expert deposition should generally result in more than a simple list of opinions. Including questions which help you see the expert through "big picture" glasses will give you an idea of how a jury would see the witness during direct and cross-examination. There are plenty of sample deposition questions available to help prepare an outline and an extensive list is outside the scope of this article. Apply your judgment and do your research to decide whether and how far you want to delve but questions to elicit testimony regarding education and degrees, work history, affiliations, certifications, memberships, publications, presentations, honors, and awards may be helpful. Are the publications peer-reviewed? Do the organizations require nomination or can anybody join? Are the awards industry recognized or can you buy one off the internet? Has the witness faced professional disciplinary actions or sanctions? Has the witness' testimony been challenged, limited, and /or excluded by any court?

Use your resources. Is the witness known to your firm or colleagues? If the witness shows up in legal research the attorneys from those cases may offer insight. Before and after the deposition your retained expert(s) may offer insight into the field as well as the deponent's opinions and qualifications. Your client may also be a valuable source of information to help build your knowledge base. Consider reaching out to organizations to which your firm is a member to ask for information including prior testimony. Reviewing testimony in previous cases may be helpful in pinpointing areas you want to focus upon as well as give you a heads-up on how the expert testifies. If the expert answered questions in a courteous and cooperative manner in previous depositions you have a pretty good shot that your experience will be the same. On the other hand, if the witness was consistently difficult or "ran" from questions then you can prepare for that as well.

Finally, respect the witness' experience but do not be intimidated even when you find yourself about to depose "the guy who wrote the book on" fill in the blank area. Regardless of the witness' background, he or she has been hired to do a job and so have you. Always be respectful, professional, and courteous but keep in mind that this is your deposition and that for the hours that you are together the witness is there to answer your questions.

Peggy Smith Bush is founder and owner of Southern Trial Counsel, PLC, in Orlando, Florida.

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).