The Deposition Process
For experts, the deposition process begins well in advance of the deposition itself. The attorney will likely prepare you for the deposition. In preparation, the attorney will focus on issues important to the case and effective communication in the deposition itself. Depositions are at a specific time and place, usually planned well in advance. Typically, the court will set deadlines for depositions. The deposed witness is asked to swear or affirm that the testimony they give during the deposition is true. Then, the parties ask the witness questions.
The majority of the questions come from opposing counsel rather than from the hiring attorney. However, the attorney who retained your services is not likely to stay silent. Retaining counsel is likely to participate by making stipulations or objections. A “stipulation” is, in essence, an agreement to a fact or item at issue, meaning the retaining counsel will treat it as if it is true. Retaining counsel will use an objection in order to preserve that objection on the record for future consideration by a judge if necessary, but as there is no judge present during a deposition, objections do not play the same role as they do in trial and the expert will be expected to answer the question.
Federal and state court rules often limit the length of depositions. Typically, depositions will be limited to one day or seven hours, unless the court gives permission for a longer deposition. These rules vary, and courts have the ability to adapt time limits to the needs of the case. As such, it’s important to consult with retaining counsel about the expected length of any particular deposition.
Read more about the deposition process here.
Deposition Best Practices
As an expert participating in a deposition, you will be asked about your written expert report, presented opinions, and methodologies. The deposition is also where opposing counsel may attempt to discredit your credibility or undermine your report ahead of trial. Fortunately, with foresight and ample preparation with your hiring attorney, it’s possible to sail smoothly through a deposition. Below are a few recommendations that will help you successfully navigate deposition.
- Do your homework. Review the materials provided and understand the objectives of the various parties, including your own.
- Do not allow yourself to be rushed to answer. When opposing counsel asks you the same question over and over in an attempt to get you to say something different, repetition is your friend.
- Tell the truth. There is no need to embellish, and it’s important to tell the truth even if it is not in your client’s favor.
- Stay neutral. Try to keep emotions out of the deposition and recognize when an attorney is trying to get you frustrated or angry. This distracts you from your science and analysis.
- Remember you’re the expert. They’re trying to get information from you, not the other way around.
Read more advice on do’s and don’t during the deposition process here.
How to Deal With Abusive Questioning
Depositions are a strategic battleground for attorneys. A deposition preserves testimony, making it difficult to change later. Because of this, lawyers strive to get as many clear-cut answers as possible. In doing so, some lawyers result to abusive tactics. Expert witnesses can defuse many commonly-used abusive deposition tactics by ordering their responses according to a few basic rules.
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- Answer the question asked, no more no less. The correct answer to “Do you know what time it is?” isn’t to check your watch and give the time. It’s either “yes” (you do know what time it is) or “no” (you don’t). If opposing counsel wants a particular piece of information, they must ask for it.
- You’re doing a job, not a mission. Your role is to stay ethical and professional. Let retaining counsel worry about “wins” and “losses.”
- Admit to uncertainty when it is appropriate. “I don’t recall,” “I don’t know,” “That was not part of the scope of my work,” and “As far as I know” are acceptable answers as long as they are true. Don’t try to sound 100% certain unless you are in fact 100% certain.
- Pay attention to objections. When retaining counsel objects to a question, it’s often because the question is tricky in some way. Pay special attention to objections and take a moment before responding. These objections often address questions that experts can’t answer without stepping into some kind of trap.
- Don’t take anything personally. As an expert, you’re aware that in your field, facts are facts—they aren’t personal. Similarly, an opposing counsel’s attitude is not personal. Think of any aggressive attitude as an attempt to advocate for their client, not to tear you down.
Read more about questioning in deposition here.