Tips and Tricks for Young Lawyers Taking Their First Expert Deposition

The following tips can be used as a starting point to take a killer expert deposition.

Be an expert of your case. Your opposing expert may be a well-respected authority in the field on which they are offering their opinions. Yet, that should not intimidate you as you (should) know your case better than anyone else in the room. This includes knowing all the strengths and weaknesses of your case, including the relevant facts and applicable law. Most importantly, remember it is you who is taking the deposition, which means you are in the driver’s seat. You are the one who can control where the deposition goes by having a thoughtful line of questioning prepared in advance. 

Create a thorough outline. Your outline with the line of questioning should be prepared well in advance. It should reflect a thorough analysis of your opponent’s expert’s report and your overall knowledge of your case and the law. You should aim to understand all expert opinions stated in your opponent expert’s report and identify weaknesses where you can raise questions of reliability. You should also identify strengths in their expert opinions so that you are careful to avoid opening up an opportunity for the witness to reinforce them on the record. Share your draft outline with senior attorneys in your firm and discuss key points with your own expert.

Rely on your expert. Work as a team with your expert when preparing for your opponent’s expert witness deposition. Your expert will have valuable technical knowledge that will help you better understand your opponent’s expert’s views and seek avenues of attack when preparing your outline.

Assess the opponent’s expert. Thoroughly research the background of your opponent’s expert witness, including prior testimony and publications. You would be surprised at how many times they have inconsistent prior testimony or statements. Determine if they are really an expert on what they say they are experts and if they are not, be prepared to attack the relevance of their testimony.

Choose exhibits wisely. Your opponent’s expert witness’s report will almost always be an exhibit in their deposition, but carefully assess what other exhibits you will need. The decision of what exhibits make the cut to your deposition will depend on a thorough review of the documentary discovery in the case as well as the needs of your case. You should aim to be efficient with the number and type of exhibits you choose to use so that there is no redundancy.

Stay calm. No matter what takes place during the deposition, stay calm. Carefully walk the expert witness through the instructions and opening examination routine. You should also not be strict about your outline. An outline is a tool that must be flexible. If there is room for more questions outside of your outline and that come to mind as your witness responds, you should go down those avenues if you think it will be worth it. Then go back to your outline. However, be careful not to roam away too far from your outline either. You should also not be distracted by your opponent’s evidentiary objections unless they unduly address issues of privilege. Stay focused on the deponent. Never take a non-answer for an answer and courteously push forward until you obtain an answer.

Beware of hypotheticals. They can be a double-edged swords. If you wish to use a hypothetical, make sure you have fully thought it through, and assessed the need for it and the effect it may have on the testimony. If not fully considered, a hypothetical can quickly be turned around by a savvy expert and end in disaster.

Team up and clean up. Bring with you at least one member of your team that can help you track issues raised, answers given, lines of questioning to be further explored, and to keep you in touch with how the deposition is going overall. Their help is valuable when you are fully immersed in your line of questioning. Take a break at the end, consult your team member and assess whether any lines of questioning require clean up before closing the deposition.

Overall, thorough preparation will ensure a smooth expert deposition.