2012 Winter Newsletter - Checklist for Attorneys

Preparing an Expert Witness for Deposition

by Lawrence J. West
Johnson, Trent, West & Taylor, LLP  

Have you ever presented an expert witness for deposition and his/her performance was less than ideal?  If the answer to this question is “yes”, then perhaps a checklist of items would be helpful in preparing your expert. As the old saying goes: “There are no poor witnesses, only poorly prepared ones.”  To assist you during your depo prep session, below is a checklist of items to cover with your expert witness.

1. Update Your Resume Prior to the Depo

• Make sure your resume is accurate in all respects particularly educational history, degrees obtained and dates of employment.

2. Organize File and Know Your Report

• Know your file so you can use it as reference material, like an open book exam.
• Your report is the most important part of your file (read it).
• Does your report memorialize all of your significant opinions or do you expect to prepare an additional report?
• Opposing counsel will want to look at all documents reviewed by the expert.

3. Know Previous Testimony

• If you have given testimony in a similar case, re-familiarize yourself with it.
• If there are any contradictory positions, be prepared to distinguish them.

4. During the Depo Prep Session Leave Time for a Mock Cross Examination

•  Start with the introductory questions:
• Previous work history, including previous jobs
• Previous supervisors and responsibilities 
• When were you first contacted about this case?
  • Who contacted you?
  • What were you asked to do?
  • Did you meet with the attorney to discuss your assignment? 
  • How many times did you meet with the attorney?
  • What materials did he/she give you?
• Did you request additional information (documents or depo transcripts)
  
  • Then ask specific questions about what evidence there is to support his/her conclusions.

5. Depo Transcript and Video Will Be Used At Trial

• Same penalties for perjury apply as though you were in court.
• Transcript and perhaps video will be made of all your answers and can be used at trial. 
• Dress in a coat and tie (even if lawyers do not).
• Answer each question with a verbal response, the court reporter cannot take down the nod of a head.
• After the depo, read the transcript for transcription errors.
• Use correction pages at back of the depo transcript (example: if you used the word “incident” and the court reporter typed “instant” you will want to make that change).

6. Answer the Question Fully But Do Not Expand

• Typically deponents begin thinking of an answer while the question is being asked and are not paying close enough attention to the question.
• Be patient and disciplined to listen carefully to the question.
• Jurors listen carefully because they are not preparing for a response.
• If the other lawyer does not ask you all you know, do not volunteer information not called for by the question.
• If a “yes” or “no” will truthfully and adequately answer a question, then simply say “yes” or “no.”
• If you do not know the answer to a question, say “I don’t know.”
  • Give factual information in answer to a question only if you have first-hand knowledge of the facts.
  • Do not base your answer on guessing, surmise or speculation.
  • Be cautious in estimating distances and elapsed time periods.
  • Take your time in answering the questions (but not to the point where it’s unnatural).
  • Do not ask the attorney that hired you if you are required to answer a certain question.

7. Opposing Counsel Will Summarize Testimony

• Listen carefully when the Plaintiff’s attorney tries to summarize as it will always include words and descriptions that you did not previously give (that is why he/she wants you to agree).

• Do not let the lawyer put words in your mouth.

  • The lawyer will likely ask: “Isn’t it possible…”  Your response should be “based on the data we have today, it is unlikely.”

8. You Control the Pace of the Depo and Timing of Breaks

• Do not be afraid to ask “when you get to a stopping point, could we take a short restroom break?”
• Do not ask for an opportunity to speak with your lawyer.

9.  Do Not Speed Up the Cadence of Your Answers. 

• That plays right into the hands of opposing counsel.
• He/she has thought in advance of all of his cross-examination questions.
• You have not thought of all your answers in advance.
• If you speed up the cadence of your answers, you are likely to get trapped.

10. Look Out for the Malignant Statement Followed by the Benign Question.

• Usually the malignant statement comes in the form of a summary of your words.
• You can always ask the attorney to repeat or rephrase his question - and typically the rephrased question will not be as sharp. 

11. When Asked About Critical Opinions, Do Not Use Weasel Words

•  “I don’t think so” or “maybe not”.

  • If you are charged with murder and on the witness stand asked whether or not you murdered someone, if you say “I don’t think I did” the jury is going to believe, of course, that you did do it.

• So when you arrive at the ultimate issue of the case, be more assertive

• If you need to leave yourself some wiggle room, say “based on the facts available to date…”

12. Do Not Be Afraid to Admit You Met With the Attorney That Hired You

• Every competent lawyer has conferences with his/her consultants.
• If you are ever asked about what the two of you discussed in your meetings or telephone conversations, you “discussed the facts and opinions.”
• If you are asked “did he tell you anything about the deposition today?” you testify that your lawyer merely “instructed you to be completely honest about all you know.”
• If the same question is asked five times, don’t be afraid to give the same answer.
• If the question is – have you “gone over” your testimony, the answer is we met to “discuss the opinions and conclusions” you have in this case and you intend to provide those same opinions here today.”

13. Tell the Truth 

• Tell the truth to the best of your knowledge.
• Do not be afraid to admit that you have had discussions about the facts of the case with the lawyer that hired you.
• But he/she did not influence your opinions.
• You must be credible and independent.
• Do not be afraid to say you cannot remember.
• If any document would help you remember, please ask for the opportunity to pull that document from your file.

14. Opposing Counsel’s Agenda During Depo

• Opposing counsel wants to flush out all of your opinions: those that support his client’s position and those that do not.
• Opposing counsel wants to pin you down to a story that he can later develop testimony to rebut at trial.
• Opposing counsel wants to lock you into a story you will be unable to change without contradicting your depo testimony.
• Opposing counsel wants to give you a hypothetical to get you to concede if the facts were “X” you would support his client’s position.
• Try not to get trapped by a hypothetical but you must balance that with the overriding need to be a credible witness that concedes the obvious (“If the facts were “X” it would be important to do “Y”).
• Watch out because he/she will blow that up to show the jury that since your attorney’s client didn’t do “Y” in this particular case, they are negligent.

15. Avoid Nervous Ticks

• Keep your hands away from your mouth.
• Don’t unscrew cap to water bottle and take a sip before each answer.
• Don’t rock back and forth in your chair.
• Get a good night’s sleep before the depo.