In today’s world, it should be no surprise that many cases are won or lost on the basis of expert witness testimony. See, e.g., Matthew D. Taggart, “How to Prepare for and Manage the Depositions of Expert Witnesses,” Los Angeles Lawyer, Jul.-Aug. 2012. One of the biggest challenges for litigators may be how to best equip their retained experts with the tools to succeed in a deposition. This article offers guidance for attorneys for both preparation before an expert deposition and successful outcomes during the deposition itself.
As one legal analyst explains, “hiring an expert witness is not enough. …Counsel must carefully vet the expert and see him or her through the discovery, and, in particular, deposition. …To a large degree, the success of a lawyer in meeting these challenges will depend on how the lawyer conducts the expert witness deposition.” Id. The guidelines for best preparing an expert and getting the most out of an expert deposition are as follows.
(1). Preparing the Expert: According to one litigator, “The starting point for defending an expert deposition is for the lawyer to…identify with precision what the expert’s specific opinions are and to prepare the expert to explain those opinions without either being rattled or committing substantive errors.” Id. Although this task may seem relatively easy, all expert witnesses, even the most experienced ones, “require careful preparation.” Id.
The good news is that the majority of failures in an expert deposition do not result from clever cross-examination but rather, from a lack of adequate preparation and/or defense by the attorney, so attorneys have the ability to prevent most depositions from becoming problematic. See id.
In determining how to best prepare an expert for opposing counsel’s deposition, attorneys should bear in mind that their job is not to teach the expert about “his or her area of expertise,” but, instead, to “help the expert with the task of being a witness.” Id. One of the most important ways to prepare an expert is to ensure that the expert knows that their job is to tell the truth. See id. While this may seem self-explanatory, one attorney cautions that most problems relating to the testimony during an expert deposition occur when an expert feels challenged by opposing counsel and thereby engages in a game of “cat and mouse,” attempting to shade the truth because the expert feels on the defensive. See id.
Another way in which attorneys should prepare their experts is to explain exactly what the expert should expect during the deposition. Although many experts have been deposed before, it is important for the element of surprise to be minimized to the greatest extent possible. Accordingly, attorneys should advise experts of the parameters of the deposition, the estimated length, where the expert will be sitting, and even whether the deposition will be videotaped. See id. If, for example, the expert deposition will be videotaped, litigators should “remind the expert especially to be cautious about tone and facial expressions, as jurors commonly are affected by such matters.” Id. Moreover, in this viral age, videos of expert deposition have been released on public media, such as YouTube. To prevent video depositions from being used to “harass and embarrass” a witness, counsel should seek a protective order to disallow the video from being released on the internet. See id. Opposing counsel will generally agree to such an order because it will protect their own witnesses from similar exposure. See id.
Although it may seem evident, many attorneys forget to prepare expert witnesses in the same way that they would prepare lay witnesses. For example, as with lay witnesses, attorneys should advise experts of the following: to “listen to the question asked and only answer that question.”; “not to guess, to go slowly enough that the court reporter does not become annoyed, and to speak in firm, assured, but not-too-eager tones.” Id. Perhaps most importantly, experts should be aware that they will sometimes be asked a question that cannot be answered because it is a loaded question or because one of its premises is faulty. In such cases, designating counsel should advise their experts that the question as asked cannot be answered, or to “supply the missing essential information needed to answer the question and answer the question as modified.” Id. Attorneys should caution their expert witnesses never to answer a question that they think “the questioner meant to ask, or to answer a question that the questioner is about to but has not yet asked.” Id. The goal of the deposition is not to provide opposing counsel with additional opportunities to ask questions that they, themselves, did not think of, so experts should be advised to pay careful attention to what is actually asked and not to volunteer additional information, as doing so may open up new avenues for cross-examination.
Before actually going to the deposition, it is important for litigators to make certain that their experts do not have any unanswered questions about either the process or the substance of the proceeding. See id. In addition, attorneys should ask the expert witness if there is anything the attorney should know that the expert has not already disclosed. See id. This is useful for two reasons: (1). it will minimize the number of (potentially unpleasant) surprises that occur during the deposition, and (2). when experts start concentrating on their testimony prior to a deposition, they may recall something important that they had previously forgotten. For example, the expert may remember a treatise that contradicts the testimony that the expert is about to give. See id. In such cases, it is always better to have this information early and to anticipate potential cross-examination on such matters.
Finally, attorneys should prepare their expert with a mock cross-examination of the witness. See id. Issues that may predictably arise in the actual deposition should definitely be explored, but the designating attorney should go even further, subjecting their expert to a grueling examination in order to determine if there is anything that may arise that is not quite so predictable. This step will help the expert to be prepared when the actual cross-examination occurs and will help the litigator prepare appropriate and credible responses to any questionable aspects of the expert’s opinion, style, or presentation.
(2). The Expert’s Report: Prior to a deposition, attorneys should always review an expert witness’s report with that expert. See id. As one litigator explains, “The expert report is the road map for the deposition, and the preparation can closely follow the report.” Id. The contents of the report should be verified and gone over thoroughly so that the expert understands the lines their testimony should follow and limits their testimony, as much as possible, to the contents of that report. Although jurisdictions vary in terms of their requirements for disclosure of an expert witness report, such a report should always be provided to the attorney who retains the expert, because it will provide an important guideline that helps predict exactly what the substance of a deposition will be and what matters the expert is comfortable with and competent to testify about.
(3). Prior Testimony: In preparation for an expert deposition, “Counsel must discuss the expert’s prior testimony in other cases and, if possible, obtain transcripts of that prior testimony. Id. Part of the rationale for doing so is to ensure that prior testimony does not come back to “haunt” the expert. However, it is also important to be aware of the contents of an expert’s prior testimony because “Even if the expert’s prior testimony does not undercut the expert’s credibility in the current case or involves different legal issues, counsel should still read the transcripts to better understand the expert’s style and tendencies while testifying.” Id. In so doing, attorneys can also flag any potential bad habits that an expert had in prior proceedings and can attempt to rectify such habits before opposing counsel has the opportunity to capitalize on them. See id. In addition to taking this step, savvy litigators will also obtain copies of the expert’s previous publications, speeches, or any other documents that can assist attorneys in predicting how their expert will testify and how to best prepare and protect their witness for an upcoming deposition.
(4). During the Deposition: Attorneys who have followed all of the above steps should find that both they and their expert witnesses are quite well-prepared. In such an event, the main responsibility of the attorney “will be to object to improper questions to preserve the record for trial and possible appeal.” Id. There are three steps that litigators can take to get the most out of their friendly experts’ depositions.
First, “the attorney should prevent the expert from being an advocate.” Id. The attorney is the advocate while the expert’s job is to appear as objective and neutral as possible. See id. Counsel should remind the experts, immediately before the deposition takes place, that they should “avoid openly advocating for the client” because they cannot appear credible while favoring one side.” Id.
Secondly, “the attorney should get out of the way once the deposition starts.” Id. If an attorney has diligently prepared an expert, the witness will not be helped by constant interruptions by that attorney. In fact, such interruptions can cause experts to lose their train of thought or become necessarily anxious. At this point, attorneys who exude confidence in their own experts may, in turn, have a more confident witness testifying.
Finally, attorneys must decide whether or not they wish to conduct any redirect examination of their experts. See id. As at trial, “the expert’s attorney should be given the expert the opportunity to flesh out statements that may have been taken out of context or to cover additional facts that diminish the damaging testimony that the noticing party elicited.” Id.
Many publications exist to assist attorneys whose function is to cross-examine an adverse expert witness, but the art of helping attorneys in depositions with friendly experts often goes unaddressed. The aforementioned guidelines can go a long way towards ensuring that one’s experts go into and come out of a deposition with the level of credibility that the designating attorney wishes to impress upon a jury.
By: Kat S. Hatziavramidis, Attorney-at-Law