Pretrial activity in any litigation can have a huge impact both in trial and of course, on the overall outcome of the case. Depositions are an essential part of these pretrial procedures and are opportunities to secure sworn testimony to be used at trial. Since there are specific rules that govern depositions of witnesses and further the deposition of experts, it is important to be familiar with these rules. To ensure that your witness’ testimony is of maximum value, we have compiled a checklist (as well as a downloadable PDF version here) to offer just some quick reminders when preparing an expert for a deposition.
Preparing For Your Expert Witness
Before working with your expert witness as part of the “trial team”, there are some preliminary must do’s to give you a better sense of your expert’s professional background and ensure that the deposition runs smoothly.
Doing some reconnaissance (a Lexis or Westlaw search) on the expert and cases in which the expert has been deposed/testified:
- Note the similarity in causes of action and which side he testified for
- This is especially important if those prior testimonies in any way form the basis of questions that may be asked by opposing counsel
- Also important for noting any biases and preparing for any questions about/relating to that bias.
If possible, also communicate with the attorney for whom the expert was a witness in a prior case:
- Ask about how the expert communicates
- Probe about expert’s personality
In the case of experts who are subject to occupational regulations, make sure they don’t have anything that could ruin their credibility for example:
- Malpractice (for physicians)
- Complaints to Review Boards
- Disciplinary action
- Professional sanctions
Try to make sure that the expert interview is distinct from the deposition preparation. Separating the two events:
- Allows you time to make an assessment about the expert
- Do any necessary follow-up before preparing for the deposition
Knowing the Rules
Depositions are sworn testimonies taken in anticipation of trial during the discovery phase of litigation; however, not all of the testimony may be admissible at trial. The rules governing discovery and particularly those governing depositions can be found under Title V of the Federal Rules of Civil Procedure rules 26-37. Depositions of all expert testimony are governed by the FRCP 30(c)(2). The importance of strictly meeting these conditions prescribed by the rule cannot be overstated and anything but strict adherence to their technicalities could result in the exclusion of your expert’s testimony at trial.
- Designate the witness as an expert in mandatory initial disclosures FRCP 26(a)(2)(A)
- Do this within the time requirements prescribed by the rules
Then make sure that you have provided both the court and opposing counsel a written report of your expert’s testimony that contains:
- A complete statement of all opinions the witness will express and the basis and reasons for them;
- The facts or data considered by the witness in forming his opinions;
- Any exhibits that will be used to summarize or support his testimony;
- The witness’s qualifications, including a list of all publications authored in the previous 10 years;
- A list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
- A statement of the compensation to be paid for the study and testimony in the case.
- The expert can only be made available for a deposition after expert’s report is produced
- Opinion is based in an expert field has been qualified under Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993) (See FRE 703)
With respect to the expert’s specialized knowledge and written report, ask your expert to:
- Identify all of the factual assumptions made
- Identify facts you need to prove to support his conclusions
- Identify all of the facts which, if proven, would weaken his conclusions
Knowing What Your Expert Knows
The reason that an expert is retained is because, presumably, they possess some high level of technical or specialized knowledge about a particular subject. This is what makes their testimony of consequence to the claim or claims in a litigation. More importantly, they are retained for the purpose of aiding the trier of fact in coming to a conclusion on the merits of a case. Accordingly, there are several key facts you should know about your expert before a deposition.
- Expert’s educational background
- Grades in school
- Obtain CV and get copies
- Any certifications
- Any distinguished honors or awards
- Memberships/ affiliations in all organizations and interest groups
- Major projects in which the expert has participated
- Any requirements specific to his field
- All instances where the expert gained any practical experience
- Additional training courses
- Also ask expert to disclose any disciplinary history
- Investigate any gaps in the expert’s CV
- How many times has the expert been deposed or testified
- How much experience does the expert have in federal court vs. state court
Preparing Your Expert
Once you have become familiar with your expert and the knowledge they have to offer for your case, the next step involves a good degree of teamwork. Although seemingly obvious, it’s important to discuss the case with your expert in detail, outlining the need for his expertise and testimony.
Bring the Expert on Board
- Integrate the expert into the theme of your case
- If not directly involved with your client (like a doctor or psych), at least make the client and expert aware of each other
- Familiarize your witness with the members of the opposing party, especially those attorneys who will be cross-examining him
- Ease the expert’s nerves
- Even the most experienced experts, who have testified numerous times, can be nervous or anxious, that’s just human nature
- Remember to build a good rapport with the expert
- Alleviate their tensions about the deposition, aside from just the substance of their testimony
- Reassure them that you are there to assist them
- Review questions and answers of any interrogatories sent to the expert prior to the deposition
- In addition to using your expert to prepare for the opposing expert’s deposition, also use your witness to help identify questions about facts for non-expert depositions as well.
- Success and credibility of your expert’s testimony depends on expert’s ability to deal with contrary factual arguments instead of rebutting theories
- Evaluate damages settlements
A key part of the preparation phase is putting together a set of all the relevant materials that may be required for the deposition. Hence, careful organization of these materials could be the difference between a strong and weak deposition testimony.
- Organize all materials to be used in this litigation into a binder (documents are easily removable)
- Prepare a deposition outline with a logical flow from topic to topic
- Prepare a copy for opposing counsel
- Include the expert’s written report
- Any relevant materials previously disclosed by opposing counsel, such as a copy of the opposing expert’s report
- All exhibits, including graphs, charts, pictures, official reports and publications
- Report of methodologies used by the expert and corresponding standards in the field
- A copy of any interrogatories sent prior to the deposition
- Separate all these components by tabs in your binder
- Create a quick index of exhibits for yourself
- If the expert was subpoenaed, make sure they satisfied the requirements (FRCP Rule 45)
- If it case has numerous documents, isolate the most crucial ones that expert will need for his testimony
- Arrange in chronological order
Practice Makes Perfect Depositions
An essential part of the preparation process is practicing questions and answers with the expert in advance of the deposition. You should also go over tough questions that opposing counsel will likely ask. This involves anticipating difficult questions by combing through vulnerable spots in the expert’s testimony; perhaps a certain type of methodology is often the subject of debate among professionals. By anticipating these sorts of questions, you can help better prepare your witness with the best possible answers.
- Practice direct examination questions
- Practice anticipated cross exam questions
- Remember cross-exam questions may not necessarily be on the subject of expertise; they could be questions designed to impeach the witness and damage his credibility
- Practice your objections
- Practice in a realistic setting, with the exhibit binders that will be used during the deposition. Remember, if an exhibit is incorrectly labeled and not noted or preserved on the record, these are grounds for exclusion.
Instruct witness to preserve any drafts or notes
- The trend in case law now requires retaining counsel to instruct the witness to preserve drafts of the expert report, notes (Trigon Insurance Company v. U.S., 204 F.R.D. 277 (E.D. Va. 2001)), and email correspondence. Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003). It is no longer sufficient to rely on the expert’s own particular work habits in which he may or may not preserve drafts and notes. Therefore, now the burden is on retaining counsel to make sure that such drafts and notes are retained.
Use videotape to prepare
- Video gives you a chance to see what you (and your expert) look like, and gives you clues about the expert’s body language and demeanor
- This is a good opportunity to wrinkle out nervous ticks
Know Your Objections
It is important to the remember that the rules governing objections made during a deposition are different than those at trial. Objections made during a depositions must follow the requirements of FRCP Rule 30(c)(2) and provisions of Rule 32. It is crucial to remember that although an objection may be made at any time and is noted for the record, the deposition still proceeds.
- Only object if you will gain from making the objection, frivolous objections can actually harm you if questioning attorney can cure the objection.
- The best way to do this is to make a judgment about the kind of answer the expert may give- if you are unsure or the answer could be unfavorable, it’s safer to make the objection
- If a question is curable and you fail to make the objection for the record, the objection is waived forever (FRCP Rule 32(d)(3)(B).
- Check FRCP Rule 30(c)(2) for permissible objections
- Check FRCP Rule 32 for admissibility of deposition testimony at trial
- Remind your expert that even though you may object as defending counsel, the witness still has to answer the question, unless it involves an issue of privilege or embarrassment.
The only time a deponent may be instructed by counsel not to answer a deposition questions is when its necessary to:
- Preserve a privilege (like attorney-client or work-product)
- To enforce a limitation ordered by the court, or
- To present a motion under FRCP Rule 30(d)(3).
Remember, there are rules in place that you can use to ensure that the deposition of your expert is fair. Check FRCP Rule 30(d)(3)(A) for the grounds on which the deponent or a party may move to terminate or limit the testimony at any time.
It’s the Little Things
The atmosphere and environment of depositions, although markedly different than a courtroom setting, can still be stressful and resonate tension throughout the examination. Here are a few tips to keep your expert comfortable and, more importantly, keep the deposition going smoothly:
- Water or a refreshment for your witness
- Make sure the lighting, temperature, and ventilation are adjusted to the expert’s comfort
- Remind the expert that silence is OK, and it is preferable to take some time before answering a question
- Remind the expert that he cannot leave the room to speak with the attorney once a question has been asked
- “I don’t know” is a perfectly acceptable answer
When it is finally time for the expert to give his deposition, there are a few housekeeping matters to keep in mind, both for etiquette and efficiency.
- Confirm the venue of the deposition with opposing counsel
- Remember any stipulations between the parties
- Make sure this is a proper and convenient enough venue for your expert
- Clearly communicate the times and immediately update any changes
- Be wary of government holidays
- If your expert is travelling from out of town, make arrangements for his stay
Depositions are an essential part of the trial process, especially those of expert witnesses. Portions or entireties of depositions can have huge impacts on the outcomes of cases and if counselors are not careful, failure to adhere to the rules governing depositions of expert witnesses can have regrettable consequences. Understandably, expert depositions can be very stressful for both the attorney and the deponent. In addition to the criteria highlighted in this general roadmap, it is extremely important to consult the Federal Rules of Civil Procedure for any other requirements and deadlines the court will prescribe. Consequently, even the most experienced attorneys can use this checklist at a glance for to offer some quick reminders and ensure that the expert’s depositions runs as smoothly as possible and adds its maximum value to your case.