Okay! So here we are…..you 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…………..