TRAVELING WITH A NEWBIE EXPERT (4) Depositions are scary! Part 1
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!!!