Okay! So here we are… are now in the tough part of the questioning from opposing counsel and you have already been at it for about two hours and it looks like it will continue for at least another two. Your head hurts and you really don’t like the way this particular lawyer is making you feel and sound like an idiot. “I’m the Expert!” you keep reminding yourself………..while the little voice in your head says “when is this going to be over??”

So, what should you do? First off you can definitely ask to take a break. Step out, use the restroom, grab some water or coffee, and maybe take a minute to refresh your memory on any particular points. Sometimes if it is close to lunch time (hooray!) the entire group may decide to break for an hour- so if anyone suggests this, take advantage and use this time to reset your mental faculties.

Keep in mind that during the break your demeanor during questioning will have been a point of discussion or study for your inquisitor. Were you confident and cooperative? Were you transparent and forthright or did you become frustrated, defensive or evasive? If you believe that either the attorney’s style or some of the specific questions had been getting under your skin then speak to your attorney to get their take on the situation. It is very important to honestly appraise your performance and your delivery of key points, especially if you still have time to correct your course. And to that point, let me stress again the importance of Expert Witnesses knowing their case thoroughly. While the opposing attorney does not have your level of expertise in your field –they will have the advantage of knowing the facts of the case much better than you because they have been living it for many months.

When you are once again placed in the hot seat remain cool, calm and collected. Take each question one at a time and rely on your years of experience and in the hard work and time spent developing a deep understanding of the case. However, it is important to listen very carefully, and intently to the exact question you are asked. Once exhaustion sets in many deponents, including expert witnesses lose focus and start to answer cavalierly. Remember, many attorneys are highly skilled at wordplay and know to take advantage of these situations (which you would be able to gauge by reading the other depositions in the case!)

A good example of this is when an attorney will ask the same question in a variety of ways, hoping to create and then exploit inconsistencies in the testimony of an expert. If you believe that is happening or if you think you are being asked a trick question, stop and ask the attorney for clarification. There is nothing at all wrong with stating “I believe I answered that question earlier, but let me remind you of my response…..”

Again, if it is late in the deposition and you are growing tired you may be unaware that you are being led towards a contradiction in your testimony. In these cases you can often count on your own attorney to state “Asked and answered” before instructing you to go ahead and respond. This statement is an indication that you have already responded to the particular question and should be noted by you as a significant clue to what is happening.

Objections are also certainly something you will hear peppered throughout depositions and so should be expected during expert witness testimony as well. There are several specific objections that attorneys are allowed to make, and in some cases need to make (e.g., Form, Privilege) as failure to object at the deposition means waiving the right to do so at trial. One of the most common objections observed during depositions is “mischaracterization” which is actually a fancy term for when an attorney rephrases a question to the expert that is not what he/she testified to earlier (“Sneaky little hobbitses. Wicked, tricksy, false!”)

As your testimony wraps up, the opposing attorney will ask your attorney if you want to read the deposition prior to signing. In nearly every case it is my opinion that you should absolutely read. Not only may there be corrections needed, reading the transcript will prepare you for the next phase (God help us all) going to trial……………..!

P.S. Okay Newbies, we covered a lot of ground here but I want to end this with a completely random but important topic …….it is becoming more common to video tape depositions. So, take this as a gentle reminder for all of you (men and women!) to look your best at the deposition. Put on something that makes you feel extra confident – and if it happens to visually shave off five pounds, all the better! After that, just watch your facial expressions…….no sneering, lip curling, eye rolling or guffawing like a donkey. You can thank me later…………..

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For those Newbie Experts who are starting in this business already sporting a ton of prior experience in the courtroom, being questioned, or having your opinions challenged, the process of being deposed will be a walk in a very familiar park. For most of us though being deposed can be a daunting experience, and one that if handled badly can make or break a new expert. The good news is the key to a successful deposition lies in your own hands……and it starts with your report.

The most important thing to remember is that you are being deposed about your opinion. You will be asked to identify the documents you reviewed, who you spoke to and whether any published documents helped to frame your opinion. The smart thing to do is to write your report incorporating all of the above, because by doing this, you will have the information directly in front of you to refer to during the deposition. This will help to prevent getting thrown by a random question you hadn’t considered.

Write your report with these basic elements:

· The name of the case;

· Who you are and your field of expertise;

· A brief summary of the incident;

· Your professional opinion and the basis for your major points;

· A rebuttal of any expert witnesses from the other side;

· A summary statement;

· A conclusory statement;

· A list of every document you reviewed; and

· Any attachments such as your resume and other qualifications.

One thing I rarely see in other expert witness reports is clear and consistent identification of the specific document, page and line where information was found that supported or informed their opinion. It may be considered by some or even many experts that adding this level of detail to their report takes too much time. However, I have found that it is an invaluable method for recalling information quickly and consistently. Court cases involve hundreds and sometimes thousands of documents. To me, knowing exactly where I found the important information behind my opinion is well worth the time.

As I mentioned last week, another problem for experts is when they rely on other people’s research to form their opinion. In my mind this strategy, which is sometimes used by some of the busiest experts can really put them at risk if the colleague hadn’t done a thorough job. As a new expert witness, I believe you need to have your own “Ah Hah!” moment when studying a case in order to effectively respond when the questioning gets rough.

Once your report is submitted, your next job is to wait……and wait some more. Cases often move forward glacially, only to suddenly sprint to the finish line. When the action starts up again use this as a sign that you should get ready to be deposed.

Depositions follow a fairly standard routine:

· You will be sworn in

· You will be asked if you have ever been deposed

· You will be given instructions by the opposing attorney on verbalizing (no grunting!) and to ask if you don’t understand something.

· You will then be “warmed up” with a series of background questions identifying your history, schooling, family (why is this important??), and work history

· As an expert witness you may be asked specific questions about the nature of other cases you have worked on or the outcome.

At this point the attorney will most often begin asking you some general, easier questions which will be followed by increasingly difficult, complex questions related to the case, your understanding of the case and the basis for your opinion. As a part of this questioning you will be shown various Exhibits that you may be asked to refer to, explain or contradict.

The organizational structure and process of a deposition generally follows a predictable pattern, however, each attorney has their own unique style of questioning witnesses. It is for this reason that I want to emphasize again that new experts need to read as many (if not all) of the depositions you are given on the case. What you will learn about the attorney who will question you can be invaluable – think of this like a poker game – everyone has their “tells”. Reading multiple depositions conducted by the same lawyer will prepare you well for when it is your turn.

Next week- Part 2 of Depositions are Scary! Stay tuned!!!

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This week we will turn our newbie learning session into a brief but passionate plea for any new expert witness to take the time to read most if not all of the depositions in your case.

I will not lie- there are several negatives to doing this work. First, you cannot bill your client for all of this reading unless you are so very, very famous and renowned that people not only open their wallets to you, they literally fling money at you. So, unless you are that person (and we acknowledge you not likely reading this Blog), if you attempt to bill for all the time this takes, you will have very few clients going forward.

So… how do you approach this task? Here is what I recommend- open every single deposition you are given. You only need to read just a few pages to figure out who this person is, and what their role is in the case. Create an outline of the major players so you can keep everyone straight. I recently had a case with nearly 60 depositions to organize – GACK! (For the uninitiated, “Gack” is a reliable choking sound borrowed from old Warner Brothers cartoons).

Separate the depositions into three piles- those that are critical, those that might be important, and those that are generally unrelated to your area of expertise. For me this is often an expert medical doctor or engineer. Try as I might I do not speak medical or technical. That said, I will often skim through just to learn a little something new. Sometimes I have been surprised by how helpful this can be!

As you start to read your stack of critical depositions you will find that people’s “voices” and their intentions come across fairly quickly- the characters are taking shape. However, now is the time to remember that people lie. Sometimes it is a hard lie, “that isn’t me on the tape running away with the bloody hammer.” And sometimes it is a soft lie, “I heard someone yelling, but thought it was just an episode of Law and Order.” Most often it will be the well-known recall lie, which in a deposition is always “I don’t remember”. It is staggering how many normally intelligent people think that consistently saying they don’t remember is a great strategy. And yes, your attorney will say, “do not guess”….but that doesn’t mean it is okay to forget everything. To quote Tennessee Williams, “there ain’t nothin’ more powerful than the odor of mendacity.” (Which basically means, everyone knows what the witness is doing, which discredits them and often your client as well.)

Here is what is important- do not become seduced by reading just the stack of depositions that you have determined are critical, especially if you have become comfortable in the underlying facts to your opinion. If you do, you may find yourself seriously in trouble when it is your turn to be deposed.

Recently I read the expert report and deposition of a very well-known Expert Witness. Her pedigree was as long as my arm. Honestly – her resume was 12 pages long! Double Gack! During her deposition it came to light that her opinions on the case were based on two critical errors. First, she used her staff to assist with the heavy reading. In this system, the underling would summarize a deposition for the expert, who would then rely on this summary to help form her opinions. Sounds efficient, right? Wrong. You see the underling didn’t read all or even most of the depositions. The summary was adequate to just the depositions that were read, not to the full picture of the case. Had fuller reading been done, the staff would have realized that the information handed over to the expert had been specifically refuted through the testimony of others. Egg on face moment for sure.

The second mistake this very learned person committed was in heavily relying on the testimony of two individuals who were second bananas to the case’s star performers. Again, had she read all of the documents (depositions and records) she would have learned that both of the individuals she was relying on had lengthy drug and criminal backgrounds and one had a serious axe to grind against the defendant. All of this was uncovered by the lead attorney (brilliant lady!) who quickly exposed the Expert Witness as having trusted two crappy witnesses and a summary document by a staff person who had not done their homework. Goodbye sterling reputation.

Bottom line- depositions can provide critical information to forming your opinion, but having a suspicious and slightly cynical, investigative brain can save you from looking incredibly stupid. Put the work in!

Next week- being deposed is scary!!!

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