Even seasoned experts make mistakes in the intense setting of a high-stakes deposition. While no expert can be perfect and some mistakes are unavoidable, a good litigator can assist the expert to steer clear of many pitfalls. Avoiding common mistakes when preparing experts for deposition is key to a successful deposition. Below are the five biggest mistakes that litigators make when preparing experts for depositions and proven solutions for avoiding such mistakes.
1. Not Asking the Tough Questions
When prepping an expert witness for a deposition, the goal is to identify, in advance, potential topics that may be covered by opposing counsel. Of course many of these issues relate to case-specific topics. Others, however, fall into broader categories that must be addressed with all experts. Some of these issues touch on topics that can be difficult to discuss, but failing to raise them during deposition preparation is a big mistake.
First, you should ask your expert whether he or she has ever been disqualified as a witness or professionally disciplined. Hopefully this question was addressed prior to hiring the expert, but it is worth asking again in case the answer has changed. Spend your time and press your expert on this topic to be sure you know any relevant facts.
Be sure to ask your expert whether he or she has read in detail the materials you provided. In order to be effective, the expert must truly understand the facts at issue, as well as the parties’ competing theories of the case. You must be sure that the expert has spent the time to study the relevant materials carefully. The expert must also be reminded to thoroughly reread his or her expert report, which may have been written many months before the deposition. Also, consider discussing what testimony your expert may have offered in the past that may conflict with testimony the expert intends on providing in your case, as well as what testimony the expert has provided for the opposing counsel’s law firm in the past.
Additionally, you should review your expert’s prior testifying experience carefully. Consider what “dirt” your adversary may have been able to dig up on your expert in advance of the deposition so that you can adequately prepare your witness. Pull articles authored by your expert, looking for points that may be opposite to your position in the current matter; do Internet research on your expert; and pick up the phone and talk to other lawyers who may have dealt with this expert in the past to see what they may know. Discuss what you found with your expert and make sure he or she can provide well thought out responses.
2. Not Recognizing the Differences in Experience Levels and Adapting
It is essential to determine how experienced an expert is at giving deposition testimony, and you will have made a big mistake if you fail to do so. First, you should ask how many times your expert has been deposed and when the expert last sat through a deposition. Regardless of the answers to these questions, it is vital to give yourself enough time to prepare with your expert and insist that the expert—and not the person who may be assisting the expert—set aside sufficient time to be prepared.
Some experts, even those extremely sophisticated and experienced in their field, may have been deposed far less than one might think. For less experienced witnesses, it is essential to give them a good idea of what to expect the day of the deposition. Often the best experts are the ones who are true experts in the field but have not done much expert work in the past. For witnesses who do not have significant experience being deposed, you must take the time to walk through with them key deposition pointers such as:
- Tell the truth.
- Listen to the question.
- Ask for clarification if you do not understand the question.
- Read the entire document before answering.
- Answer only the question that was asked.
- Leave yourself wiggle room.
- Think before responding.
- Ask for breaks when you need them.
On the other hand, many experts have been deposed numerous times. For those witnesses, it is tempting to skip over some of this initial preparation. It may be difficult to get the attention of a seasoned expert when it comes to basic deposition preparation, yet you must. It is always helpful to be reminded of the general deposition techniques, and while you may be able to skip over some of the details, you should at least remind the expert of the general principles discussed above. Also, you will have specific insight into the facts of your case and the style of the opposing counsel, and will likely have thoughts on avoiding any case-specific pitfalls. Thus, you must insist on getting enough time with your expert to get him or her adequately prepared.
3. Not Closely Studying Relevant Documents, Including the Expert’s CV
One of the first skills taught to young litigators, no matter their practice area, is to know the documents. Much can be said for perfecting litigation skills, attending trial academies, studying the mindset of juries, and more; however, without digging in and knowing your documents, a lawyer cannot be truly effective.
The temptation, however, can be to focus on learning the case-specific documents without considering the wide array of documents that may be relevant for your expert’s deposition. One very important document, for example, is your expert’s curriculum vitae (CV). Oftentimes, the copy of your expert’s CV that was included as an exhibit to the expert report is outdated by the time the expert is to be deposed. It’s your job to discuss any important changes with the expert before the deposition and ensure that a current CV is produced—assuming the document is responsive to the questions at hand or helpful to your position.
Additionally, many expert deposition notices include a request for documents. You should have your expert bring you what he or she expects to produce so that you can carefully go through the documents to be sure there is nothing additional that is responsive to the document requests, and that everything the expert shared with you needs to be produced to the other side.
4. Not Coaching Experts to Be Able to Defend Opinions While Maintaining Credibility
Of course lawyers want their experts to be able to defend their opinions. But there comes a time when experts need to bend a bit to maintain their credibility. If the judge or jury believes your witness is merely a “paid expert,” the expert testimony will not carry much weight. Therefore, it is important to discuss with your expert the need to give a little on small, but necessary, points.
At depositions, experts must instantaneously make judgment calls about where to stand their ground versus where to give a little. The best way to prepare your expert to be able to do that is to review a list of specific situations that may require those judgment calls. What are the weaknesses in the expert’s opinions and what must the expert admit to maintain his or her credibility? You should discuss specific hypotheticals in advance so that the expert will be adequately prepared.
The expert must always know where his or her “home base” is. During deposition, the expert will likely be asked hard-hitting questions that he or she may struggle to answer. Before such questions arise in the stressful setting of a deposition, you should discuss with the expert what the “home base” will be. What are the safe points that the opposing counsel cannot challenge? What are the areas of testimony where there can be no disagreement? How can the expert bend the answer to get back to these safe zones? It is important to discuss these points with your expert prior to the deposition so that the expert will know where to return when pressed on challenging subjects.
5. Not Appreciating That Experts Are People Too
It can be tempting to think that paid expert witnesses, many of whom have been deposed countless times, are comfortable during depositions and should be able to defend their positions without making mistakes. However, experts are people too, and depositions are stressful. Know how to make your expert comfortable and think through what you can do in advance to make sure that the deposition goes as smoothly as possible.
Can you insist on having the deposition in your office where the witness is in a familiar setting? Will the number of people you bring to the deposition affect your witness’s comfort level? Is your expert more comfortable in a room with windows or in the conference room where the two of you prepared? What time should the expert arrive for the deposition? Where should the expert park? What time should the expert expect to be finished? Thinking through all of these questions in advance, learning what your expert prefers, and providing the appropriate logistical information will help the expert maintain composure.
In sum, it is the job of a litigator to effectively prepare an expert witness to be deposed. When doing so, it is essential to ask the tough questions, recognize the difference in experts’ experience levels, closely study relevant documents, coach experts to defend their opinions without harming their credibility, and realize that experts are people too. Follow these steps and the expert will be well prepared to represent your client’s interests.
Tiffany deGruy is a partner at Bradley in Birmingham, Alabama.
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