Each expert has their own quirks and blind spots. The preparation you conducted previously for one expert will likely be quite different than the instruction you give to another expert. The best way to avoid any problems with this is to do your homework, prepare, and keep the lines of communication with your expert open at all times, especially in the weeks prior to the deposition.
- Know Your Expert’s Qualifications
After choosing your expert, you should be quite familiar with his or her qualifications and relevant publications. You should know how long he or she has been an expert, generally what types of cases he or she has done expert work on (including whether the work was for the plaintiff or defense side), how much he or she is typically compensated for their work as an expert, and how long he or she has been in his or her line of work prior to becoming an expert. In other words, you should have done your research on your expert prior to hiring him or her. Knowing these basic background facts about your expert is important for two reasons: (1) you will want to know what you need to spend your time on while preparing them for their deposition, and (2) you can bet on the fact that your opposing counsel will ask questions regarding all of the above information.
You should expect that opposing counsel may ask about degrees which do not seem relevant to the opinions being offered or may spend a significant amount of time during the deposition on the credentials of your expert. This is why learning and reviewing your expert’s credentials ahead of time and again just before the deposition is important so that you can prepare your expert accordingly. Some good questions to ask, depending on your expert and his or her qualifications: Are there any courses that your expert did or did not take that may be relevant? Who employs your expert and what is his role with his employer? If certain work experiences are not included on his or her CV, are there possible questions about the expert’s lack of experience in that particular occupation? Are there any gaps in time on your expert’s CV? Is the CV current and up-to-date? Does the CV list all relevant publications of your expert?
It might seem like it goes without saying, but make sure to inform your expert that he or she needs to know their own qualifications like the back of their hand, as they can be sure that your opposing counsel will ask them questions about it.
- Research Your Expert
Once you have familiarized yourself with your expert’s general background and qualifications, you should spend research your expert’s prior deposition testimony, if any. If your expert does have prior deposition testimony, take notes on statements you find most relevant, and keep an eye out for any potentially hurtful statements. You will also want to look for any statements that contradict previous statements made by your expert, as opposing counsel may attempt to impeach your expert with such statements.
You should also instruct your expert to review their prior depositions, if possible, to prepare for the possibility that your opposing counsel could attempt to trap your expert into stating something that contradicts a previous statement by your expert in a deposition.
Q: What should I do if my expert has said something in a prior deposition that is contradictory to his or her current opinion?
A: Do not panic. The fact that he or he has said something (however many years ago) that could seem contradictory to his or her current opinion is not dispositive. Instruct your expert before the deposition on what to do in the event that your opposing counsel asks a question like this. Some good examples of possible answers include: the science has changed and the answer I gave X years ago is no longer correct because Y; or that answer was limited to the particular set of facts in that case, and does not apply to the facts in the present case.
- Know Your Opposing Counsel
Prior to preparing your expert for the deposition, you should make every attempt to learn as much as possible about your opposing counsel. After all, you will not be able to fully prepare your witness if you do not even know what to expect as far as questions, tone, attitude, and style. If at all possible, learn the personality, style, and quirks of the opposing lawyer, and use this information to your advantage.
- Meet with Your Expert
Do not assume that an expert knows what to expect even if they have been deposed as an expert fifty times. Possibly the worst thing you can do is to use your client’s money to pay for an expert but then not prepare the expert properly. It is your job to make sure the expert has the tools and techniques necessary to sit in a deposition.
Q: What if I am a new attorney and the expert is well-seasoned? How can I expect them to listen to my instruction when they likely have been an expert in more cases than I have litigated?
A: The American Bar Association has actually published some great advice for dealing with just this situation in an article by Roula Allouch.[1] The article gives young attorneys a series of tips for dealing with an expert witness, including: learn about the subject area your expert will be testifying about whenever possible; remember that while your expert outranks you in the subject-matter expertise, you outrank your expert in legal expertise; instruct your expert to keep things to the point and avoid boring details that provide no benefit to the case whenever possible. If nothing else, “[i]t is critical for the lawyer to remember he or she is the one with the legal knowledge in a case and not to allow himself or herself to be intimated by an expert or his or her expertise.”[2]
Nothing is better preparation than practice. After all, practice makes perfect, right? And the extent of this practice deposition can depend entirely on your case, your expert, your own experience in dealing with experts, and, of course, how much your client is willing to pay.
Even if you do not have the time or the resources to spend more than half an hour with your expert in preparation, take them and use those minutes wisely. Before you meet, prepare a series of questions you think are most important for the expert to know how to answer prior to the deposition, and phrase them as close to the way you think your opposing counsel will phrase them.
Be hard on the expert witness. This is their chosen profession, and they have likely done this before; they can handle it. Ask them the tough questions and try not to keep the practice session too light or friendly, as this will probably not be how the room will feel during the actual deposition. You are not here to be friends with your expert, you are here to prepare them to best represent your client and your case. Prepare them for the probability that they are going to get more than a few uncomfortable or “unfair” questions.
You will also want to instruct your expert to be prepared to answer questions regarding important dates of the case, such as: when the expert was first contacted by counsel; when the expert was retained; when records were received and from whom they were received; when the expert formed his or her opinions in this case; the date of the accident or occurrence in question; and the date key tests were performed, if any.
One way to get your expert involved in their own preparation is to ask your expert about any issues they think are likely to come up. You can even ask for them to prepare a list of issues for you. This will also help you prepare for any depositions you might need to take of the opposing party’s expert witness(es).
- Compensation
Regarding compensation, you will want to know specifics – and you should instruct your expert to know the specifics, as well. You will want to instruct your expert to expect questions on how they are being compensated for their work on this case, involving questions regarding: their hourly rate; how much they have billed to date; how much is owed on the case to date; what percentage of their income comes from legal matters; and what percentage of work is plaintiff versus defense.
- The Expert’s File
It is extremely important your expert knows that he or she should review and be very comfortable with (1) the key facts of the case and (2) the science or subject-matter on which they are there to provide their expert opinion. You should also instruct your expert to organize the file to his or her own liking. This can help him or her to review the file while also preventing stress in the deposition by avoiding a situation in which he or she cannot find a necessary document.
Also instruct your expert to look things up if necessary. While they are an expert rather than a lay witness, they are not expected to have photographic memories or to know all ordinances, codes, or other regulations by heart. Again, pay particular attention to the expert you think might want to protect their ego at all costs – firmly instruct them to avoid answering a question unless they have all facts necessary to answer (although they should have an understanding of what they wrote in their report and of the subject matter they are testifying about as an expert). Particularly caution them to be on their toes when they are testifying about their opinion as to a material fact or legal conclusion in the case.
As you know with a deposition of a lay witness, you should be cautious as to which documents you choose to share with your expert, as they may be discoverable. If you are worried about a document being discoverable but feel that it will be helpful in preparing your expert, simply refer to the document without actually presenting it to the expert or including it in their file. This is a good way to refresh your expert before a deposition without worrying about making a privileged document discoverable in the deposition.
- The Expert’s Report
Experts should also know their report in the case, if any, like the back of their hand. Tell them that while they may bring a copy of the report to the deposition (and they should), they should read and re-read and re-read that report in the days prior to the deposition until they can almost recite it. The last thing you want is for your expert to appear as if they do not know what they have written or that they do not seem to be as knowledgeable as their written report made it seem.
- The Daubert Standard
Your expert should be aware of the Daubert standard prior to the deposition.[3] If nothing else, he or she should be aware of the set of Daubert factors: whether the evidence can be and has been tested; whether the theory or technique has been subjected to peer review and publication; the known or potential rate of error; the existence and maintenance of standards controlling the technique’s operation; and the degree of acceptance within the relevant scientific community. In other words, your expert should know to avoid ipse dixit opinions and that, if a medical expert, he or she should not rely purely on title and training as the basis of all of his or her medical opinion testimony.
- Logical Fallacies
Also instruct your expert to avoid the common expert fallacies: post hoc ergo propter hoc; cum hoc ergo propter hoc; and the false dichotomy fallacy. Post hoc ergo propter hoc translates to “after this, therefore because of this.” It is commonly seen in unexplained or unexplainable death cases and evolving scientific areas as the fallacy lies in a conclusion based solely on the order of events, rather than taking into account other factors potentially responsible for the result that might rule out the connection. Cum hoc ergo propter hoc translates to “with this, therefore because of this,” and is a fallacy that correlation establishes causation. This is untrue, however, because causation cannot be established simply because certain events occur within a temporal relationship. Lastly, the false dichotomy fallacy is a common attempt by advocates to eliminate the middle ground. Generally, courts evaluate this fallacy as an example of basing an opinion on false assumptions.
- Objections
You should instruct your expert about when and how you will be objecting during the deposition. If your expert knows about objections prior to the deposition and knows to listen carefully to the wording of your objection, it may help the expert know how to respond to a question without actually coaching him or her. You should also explain that objecting during depositions is limited to specific circumstances and that in most cases your expert will still have to answer the question. Your instruction on depositions should include the following information:
What Objections Can be Raised at a Deposition? You will want to briefly explain what objections are and how they come into play during a deposition.
What Should the Expert Do if You Object to a Question? Instruct your expert that he or she can still answer as long as you do not instruct them not to. You may want to explain that generally he or she is going to be required to answer, despite your objection, unless there is some extraordinary reason that they should not. The typical objection of attorney-client privilege does not apply here, as there is no attorney-client or other privilege between you and your expert.
How Can Your Objections Help the Expert? Inform your expert that he or she should listen to the substance of your objections for information that can help the expert respond to poorly worded questions.
While it is your job as the attorney to object when your expert has been asked a poorly worded, compound, or vague question, you should also instruct your expert to pay attention to tricky questions in case you are unable to object before they start answering the question. Let your expert know that they are fully within their rights as the deponent to ask for clarification, to tell opposing counsel that they do not understand the question, or to restate the question back to opposing counsel and ask whether that is what he or she is asking. Emphasize to your expert that they are by no means expected to answer a question they find confusing.
This has the potential to be a problem with well-seasoned experts, as they might feel that they know more than opposing counsel or feel that they have something to prove. Because of this feeling, the expert might try to answer questions that they have no business answering or fail to ask for clarification when needed. Get a feel for your expert and pay attention to whether you think this applies to him or her. If you think there is a chance that it does, perhaps consider scheduling a practice deposition or even a few tricky questions to see how he or she responds.
- Breaks
Inform your expert that it is perfectly acceptable for him or her to request regular breaks throughout the deposition, and that if the deposition is likely to go for more than a few hours, a break for food might be agreed upon, as well. Also inform your expert that while they are entitled to regular breaks, your opposing counsel might ask that the expert stay to answer a question or the line of questions prior to taking a break.
- Opposing Counsel is Not Your Friend
Emphasize to your expert that while they should employ active listening and be truthful during the deposition, they should absolutely avoid helping out opposing counsel during their questioning. By employing active listening, they should be hearing the question that is actually being asked, versus the question that they might think is being ask or that they want opposing counsel to have asked. Caution your expert to answer only the question that was asked, and to avoid adding in any extraneous details. It is opposing counsel’s task to ask the right questions, not your expert’s job to fill in the holes.
You should also instruct your expert to not trust opposing counsel or take anything they say as the truth. For instance, if opposing counsel states in a question that the expert said “x, y and z” previously, make sure your expert does not take this characterization without first asking for background information. If opposing counsel is referencing a prior deposition of your expert, instruct your expert to ask to see a copy of the deposition. If your expert is sure that what opposing counsel stated is not the truth, inform the expert that it is completely within their rights to set the record straight and state that opposing counsel is not accurately portraying what the expert has previously said.
Ultimately, caution your expert that opposing counsel will likely try to box them in, trick them, push their buttons, or wear them down into admitting something they do not necessarily agree with, and make sure you provide them with the tools they need to successfully avoid such tactics.
- Video Deposition
An extra layer of caution should be added when preparing for a video deposition, as it is possible that this video could be shown to a jury at trial rather than live testimony by your expert. Make sure your expert knows this, and plan accordingly.
Dress. Do not expect even a seasoned expert to know how to dress appropriately for a video deposition. Instruct them on appropriate dress and, if you want to be extra cautious, you can even ask them what they are planning to wear on the day.
Attitude. While you want your expert to exude confidence – particularly when speaking about their area of expertise – you also want to make sure they do not come across as arrogant or over-confident, which can be just as damaging as a lack of confidence, if not more. This includes keeping an eye on your expert’s tone. If you notice your expert beginning to approach the line between confidence and arrogance, remind your expert that a jury may watch this and that they are more likely to relate to a person they feel somewhat equal to, as opposed to looked down on. This will be a delicate balance for your expert, between instructing and explaining to the jury when necessary, and talking down to the jury. Make sure your expert knows the difference.
Body Language. Instruct your expert on avoiding distracting or over-the-top gestures or other body language that will distract the jury or that might affect the credibility of your expert. You should also instruct your expert to avoid speaking too fast or hurrying through explanations of material that is not easily understood by a typical juror. If your expert is well-seasoned, this is likely not an area that you will have an issue with. However, if you have a relatively inexperienced expert on your hands, you might want to pay attention to his or her body language, and even take a practice video deposition if necessary. Your expert might not be in a field where he or she needs to speak or put his or her expertise into words very often, so this might be a whole new territory for him or her. Overall, make sure he or she feels comfortable speaking in front of a camera.
You should also make sure to instruct your expert to look directly at the camera regularly, just as he or she would look at the jury box if testifying at trial. Emphasize that video depositions are rather cold and formal feeling to a jury, and that they should make an effort to be personable (and knowledgeable) while speaking to the jury.
- Conclusion
Whether you are a new or seasoned attorney, the overall goal to have when hiring an expert is to prepare both yourself and your expert as much as possible. While you can make up for inexperience (on your own part or the part of your expert), you cannot and will not be able to make up for a failure to adequately prepare your expert for his or her deposition.
Author Biographies:
Micaela E. Haggenjos is an associate at Crivello Carlson, S.C. She received her B.A. from the University of Wisconsin in 2016 and her J.D. from Marquette University Law School (cum laude) in the spring of 2020. Micaela has experience in insurance defense and representing state and local governments in both civil rights cases and administrative proceedings.
Laura E. Schuett is a litigator at Crivello Carlson. She received her B.A. from Cornell University (magna cum laude) and her J.D. from the University of Wisconsin. She has been defending toxic tort and products liability cases for over 30 years. She has prepared and deposed hundreds of experts with a wide variety of expertise.
[3] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Wis. Stat. § 907.02(1). For an in-depth analysis of the Daubert standard, see Andrew B. Hebl & Kathryn A. Pfefferle, Successfully Excluding Treating Physicians’ Opinions under Daubert, Wis. Civil Tr. J. (Summer 2020), available at http://wdc-online.org/wdc-journal/archived-ed....
