Deposing the Expert
Editor's Note: Following is a condensed version of an article appearing in the Winter 2003 edition of Subrogator magazine.
Deposing the expert is often the most important event during the course of civil litigation discovery proceedings. This is true primarily because the expert presumably has the technical background, training and experience necessary to identify and explain issues, (i.e. origin and cause) which are beyond the scope of knowledge and experience of the average, reasonable person. Indeed many, if not most, cases require a “battle of the experts” in order to ascertain the most plausible explanation of the technical issues involved in the case.
These “battles” are fought during the deposition of each expert, which is why such depositions frequently result in resolution or settlement of cases. This article will offer some tips which, although seemingly obvious, are often overlooked by the expert. It will also address various ways in which experts could better prepare for and testify at their deposition, and what to expect from the deposing attorney.
A deposition is simply the taking of sworn oral testimony by either audio/video and/or stenographic means. Generally, the cast of characters includes the attorneys for both parties, a stenographer and, for purposes of our discussion, you, the expert witness. The parties or their duly authorized representatives are also permitted to be present, but only to observe.
The purpose of the expert’s deposition is to ascertain the expert’s opinions, the factual basis for those opinions, and the expert’s qualifications, experience and training in his or her field of expertise. A well-planned, methodical deposition of an expert can last anywhere from three hours to twelve hours, depending on the complexity of the case, the manner in which the expert testifies, and how prepared and educated the deposing attorney is in the subject matter of the expert’s field.
Although attorneys differ in their method of deposing experts, the deposing attorney usually begins by having the expert identify each document, photograph etc. in the expert’s file. Then, the expert’s credentials and employment history are explored. Finally, and most importantly, the deposing attorney examines the expert’s theories and the factual basis for such theories with as much specificity as time and patience will allow.
Following are some observations, from an attorney’s perspective, of how experts can be more effective in preparing for and testifying at their deposition.
First, even though you have many years of experience, and may even be preeminent in your field, never underestimate the knowledge of the deposing attorney. A sharp, experienced and prepared deposing attorney will treat the expert’s deposition as the tip of the iceberg. Working his way from the bottom up, the deposing attorney will have read expert materials on the subject matter, reviewed police/fire reports, correspondence, cause and origin reports, will have digested his own expert’s theories and will have anticipated your theories. Additionally, some attorneys may deliberately mispronounce certain "words of art" to lull you into a false sense of superiority. Therefore, tread carefully because the transcript of your deposition will most certainly be read by the opposing parties’ experts.
Second, do not hold yourself out as an expert in a field that is tangentially related to yours. For example, if you are a cause and origin expert, do not hold yourself out as an expert in electrical systems if you lack the qualifications and technical background. Your training and experience will be examined carefully, and shortfalls or exaggerations can have devastating consequences for the party who retained your services. Stick to your area of expertise, and do not hesitate to advise your client to retain additional experts to work in conjunction with you.
Third, just as real estate brokers say the three most important things in real estate are location, location and location, the three most important things for experts are credibility, credibility and credibility. Although everyone casts their professional qualifications and experience in the most favorable light possible, do not exaggerate your qualifications on your curriculum vitae. If you are truly an expert in your field, such exaggerations will only diminish your credibility before a jury.
Your curriculum vitae is a reflection of your professional qualifications and can be easily verified. Additionally, constantly revise your curriculum vitae to reflect your most recent achievements and accomplishments. Such information goes a long way in obtaining new clients and conversely, in bolstering your credibility. Since credibility is always absolutely critical, your curriculum vitae can either be a sword used by the deposing attorney to impeach your credibility or, if updated and accurate, can serve as a shield for unwarranted attacks.
Fourth, an expert’s theories and opinions are only as valid as the facts upon which they are based. Therefore, be prepared to identify every single shred of paper, every note, memoranda, statement, report, letter, photograph, transcribed conversation and document reviewed in rendering your opinion. Very often, an expert will render an opinion at his/her deposition and then fail to recall each of the items upon which the expert relied in rendering such opinion. Then at trial the expert will testify about certain facts upon which he relied in rendering his opinions, which he omitted from his deposition.
While the expert can explain that they simply forgot about it, or that it slipped his or her mind at the deposition, such omissions of material facts, coupled with exaggerations of technical expertise and seemingly inconsequential errors during a field examination, may lead to substantial impeachment of the expert at trial. The expert's opinions may be sound, but if they cannot be supported by identifiable, admissible evidence based upon facts developed in the case, the expert’s theories may be rejected by the jury and even limited by the court.
Fifth, answer the attorney’s questions directly and succinctly, and do not volunteer information. Unless specifically asked, the expert should not feel obligated to educate the deposing attorney about the subject of the litigation. If the attorney neglects to ask certain questions about specific areas during the deposition, the expert is not precluded from later testifying about those areas. Find the balance between making the attorney work for each answer and providing lucid, direct and thorough responses to his questions.
Finally, in preparing for your deposition, re-read any relevant articles, books and publications that you have authored as well as your deposition testimony in other cases. Such information is frequently obtained by the deposing attorney prior to your deposition. There is probably nothing more effective than using an expert’s authored publications and/or the expert’s deposition testimony in other cases, to impeach his/her credibility.
As noted, the expert's deposition is often the true test of the strength or weakness of a case. Hopefully, these observations will assist you in preparing for and testifying effectively at your deposition.