The Trial Practice Tips Weblog

Preparing Experts for Depositions: Tips

When preparing experts for depositions, consider giving them these tips: 

• When asked about an unfamiliar document, review it thoroughly before answering questions.
• Don't argue with the questioner--and don't joke either.  
• Don't answer a question unless you're certain you understand it.
• If you're asked the same question question twice during a deposition, make sure your answers are consistent.

For more ideas like these, see Expert Preparation, by Christian C. Mester, Trial May 2010.

The tips in this post are derived from Mester's article, which focuses specifically on preparing med-mal experts for their depositions.

Experts: Attacking for Bias

A post at Paul Luvera's Plaintiff Trial Lawyer Tips titled "Attacking the Expert for Bias" is "a simple check list of reminders" of bias-related topics to ask at the expert's deposition.

These topics include--

• Advertising for Work
• Experience as an Expert
• Fees Charges
• Income from Expert Work
• Tort Reform Activity
• Witness Consultant
• Definitions Used in Arriving at Opinions

Though written by a plaintiffs' lawyer, the post might also be of interest to defense lawyers.

Objections During Depositions: When and How

From the Atkinson-Baker Discovery Update: "When and How to Object During a Deposition," by Paul Mark Sandler and John J. Lovejoy--

At a deposition, an attorney is required to object to those defects that are immediately curable--that is, irregularities that opposing counsel can correct at the deposition. Such defects include procedural matters, such as the manner of taking a deposition, the form of questions or answers, the oath or affirmation, and the conduct of the parties.

Timely objections are necessary, for instance, where a question is leading, vague or unintelligible, mischaracterizes prior testimony, calls for speculation, or constitutes a compound question. Problems can also arise with answers. If the attorney taking the deposition believes the witness has not provided a responsive answer, that attorney should object accordingly.

There's much more in the complete article. The authors are lawyers at Shapiro Sher Guinot & Sandler.

Depositions: Thirteen Tips

My book about depositions is titled "Deposition Checklists and Strategies" (James Publishing). You can read thirteen practice tips from the book here (pdf), including--

• Impeachment nuggets;
• Uncooperative witnesses;
• Forgetful witnesses;
• Form objections; and
• Controlling witnesses.

Deposing Difficult Doctors: 15 Tips

At the website for the book Deposing and Examining Doctors, by Kim Patrick Hart (James Publishing), you'll find 15 free practice tips from the book.

An example--

Points of agreement. No matter how much of an advocate the defense physician is, you will find things in his report that you can agree on. For instance, this is a perfect time to re-emphasize the points in your client’s history that bear underlining, such as cause of the crash, the severity of the impact, and the fact that your client was wearing a seatbelt. Beginning the cross-examination with five to ten leading questions with which the compulsory medical examiner admits he agrees is a great way to give the impression that there really is not much of a debate about the injury. It also sets up a great closing argument technique.

There's more at the link. Just scroll down . . .

Getting the Complete Story from Your Client

Here's a tip from Ashley Lipson's Guerilla Discovery. To insure you're getting the full story from your client, try asking a question something like the following:

I know that you've told me the truth and I believe you. But we have to prepare for those lying S.O.B.'s on the other side. What kind of lies are they going to tell? Tell me what lying description of the events they are going to tell so I can prepare for them.

Lipson suggests this question for deposition preparation, but it might also be useful during initial client interviews. According to Lipson, it's likely you'll hear some things from your client you didn't know before--things you'll need to know about your client's case before getting in too deep.

Deposition Podcasts: Advanced Techniques

For free deposition advice, why not try my three podcasts on advanced deposition techniques? Originally posted Legal Underground, I'm reprising them here (yet again). Just follow the links--

Advanced Deposition Techniques #1: Five Tips for Asserting Control at Depositions

Advanced Deposition Techniques #2: Four Ways to Use Psychology at Your Next Deposition

Advanced Deposition Techniques #3: Miscellaneous Tips for Expert Depositions

Combined, these three podcasts have now had nearly 3,000 downloads. You can listen on a computer with speakers or even better, on any iPod or mp3 player. The 48 other podcasts I did before giving it up can be found here.

If you like what you hear on the deposition podcasts, don't forget my book: Deposition Checklists & Strategies (James Publishing, 2d Ed. 2007).

Videotaped Depositions Become More Common: A Developing Trend?

Are the lawyers who you work with expressing any of the following ideas--

• A feeling that it's important to videotape all depositions of any witness an opponent might use at trial?
• Surprise that the lawyers' opponents are not videotaping depositions of witnesses the lawyers plan to present at trial?
• A desire to videotape depositions with their own, in-house equipment?

There seems to be a trend towards videotaping depositions more frequently than in the past. Here's more evidence of that, as well as a possible explanation: "Put Your Best Foot-in-Mouth Forward: Use Depo Video Powerfully," by Dr. Kevin Boully.

Hat tip: The Discovery Update, 8/09, byAtkinson-Baker Court Reporters.

Related posts:

1. "Videotaping the Deposition of Your Opposing Expert"

2. "Controlling Abusive Counsel with Video Depositions"

3. "Videotaping Your Opponent's Deposition"

Deposition Tip: Help with Sniffing Out the Liars

From Forbes: "How To Sniff Out A Liar," by Melanie Lindner--

While there is no surefire on-the-spot way to sniff out dissemblers, there are some helpful tactics for uncovering untruths.

Liars often give short or one-word responses to questions, while truth tellers are more likely to flesh out their answers. According to a 2003 study by DePaulo, a liar provides fewer details and uses fewer words than an honest person, and talks for a smaller percentage of the conversation.

Skilled liars don't break a sweat, but the rest of us get a little fidgety. Four possible giveaways: shifty eyes, higher vocal pitch, perspiration and heavier breathing. Of course, not everyone who doesn't meet your gaze is a liar.

If you think this advice might be helpful to your deposition-and-trial practice, check out the full article. While not written specifically for lawyers, much of it applies to what trial lawyers do.

Related posts:

1. "Practice Tip: Assume Your Deposition Witness Is Lying."

2. "Cross-Examining the Liar at Trial: Two Absolute Prerequisites."

Prior to the Expert Deposition: Investigate the C.V.

Don't save your review of an expert's CV for the night before the deposition. Read it well in advance of the deposition, then mark it up and investigate the expert's claims.

Has the expert exaggerated his qualifications? Such exaggerations can seriously undermine his credibility. Has the expert included items on his CV that are simply wrong? It happens. Even typographical errors indicate a level of sloppiness on the expert's part.

Here are some things to look for--

• What does the CV say about the expert's areas of expertise? How does this overlap with what the expert is going to testify about in your case? Sometimes there is a large gap between what the expert actually does at work and what he or she plans to testify about at trial.
• What are your expert's particular areas of research interest? Again, there is often a large gap between what the expert spending time researching in real life, and what he or she has been hired to testify about in your case.
• Does the CV contain puffery? Are there claimed memberships that have expired? Are there claimed licenses that have lapsed? Were the majority of the expert's honors and award granted years ago? All of these things are fair areas of inquiry at the deposition.
• What is omitted from the expert's CV? Always check news databases and published opinions to find out more about the expert's professional life and activities.
• To whom is the expert beholden? If the expert is working or consulting for industries that hold views contrary to the one you are presenting in your case, this is something you'll want to explore further at the deposition. If the expert's CV lists grants, find out who sponsored those grants.

Too often an expert's CV is all but ignored at depositions, when it is almost always fertile ground for questioning. Just remember to prepare yourself for these questions in advance (and to review your own expert's CV before presenting it to the other side).

For more about cross-examining experts, see also these related posts: "Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial" and "Cross-Examining Experts During Depositions: A Tip."

For those who have my book Deposition Checklists and Strategies, see also Chapter I, VII, Expert Depositions, and §1:216 Five Ways to Hit Homeruns with an Expert's CV.