Even though an expert witness might be experienced and competent in the subject matter relating to your case, it’s always smart for attorneys to review the basics to help ensure a successful deposition. Here are three steps to consider before sending your expert into a deposition:
1. Have a meeting of the minds
Meet with your expert and make sure that you are both on the same page about the expectations for the deposition. You might want the opposing attorney to learn as little as possible about your positions and strategies for trial. If so, you would want your expert to give short precise answers and not give up any information that isn’t specifically asked by the opposing attorney.
On the other hand, you might want the other side to know fully what cards you have in your hand to force a settlement. In that case, you might want your expert to expand his or her answers to let the opposing side know more about your positions and the ammunition you have for trial.
2. Let your expert know you are there to help
There are times in a deposition when your expert can be put in a difficult position. Perhaps the opposing attorney is badgering your expert. Maybe the opposing side is continually requiring the expert to dig through files and locate documents. Sometimes your expert has to respond to questioning in a way that leaves an undesirable record in the deposition.
In such cases, it helps if the attorney assists the expert in remedying these issues. For example, the attorney can insist that if the opposing side wishes to have the expert respond to a question about a particular document, the opposing side should provide a copy of the document for the expert to review before responding.
Finally, if the record is not clear as to what the real opinion of the expert is, or what the full response is to a question or line of questioning, the attorney should clear those issues up at the end of the deposition. All of this is pretty standard procedure for an experienced attorney, but it is helpful that the expert and the attorney discuss these issues in advance of the deposition.
3. Review what the expert plans to bring to the deposition
Prior to a deposition, there is usually an exchange of discovery materials including:
Reports of the expert,
Documents that the expert relied on to determine his or her opinions, and
Documents that are required to be provided in order to meet the rules of discovery for the particular case at hand.
In the electronic age, it’s usually more efficient to have the discovery documentation provided in an electronic format. Many experts today receive a lot of information for their files in electronic form and might not ever produce a paper form of the documentation.
If the discovery is provided in an electronic format, it would presumably be on the opposing attorney to bring whatever paper copies of documents to be discussed during the deposition. This resolves some of the issues noted above in that when a particular document is to be discussed, the opposing attorney should provide a copy for the expert (and the attorney) to have in front of them for questioning. This might include a copy of the expert’s report.
Some experts like to bring their own copies of their reports with appropriate footnotes and other notations typically to refer to the sources of documents and workpapers used in assembling the reports. Some attorneys don’t prefer their experts to bring such documents, so that should be discussed in advance. If the attorney is okay with an expert bringing such a document, then he or she should review the entire document before the deposition to make sure there is nothing damaging in the notes.
Planning Pays Off
While most of what has been covered in this article is common sense and probably “old hat” to experienced litigation attorneys, it never hurts to be reminded that an expert and an attorney need to be on the same page — and nothing should be taken for granted. Communication can help ensure a successful outcome.
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