In depositions, the opposition has the chance to ask you about your report, opinions, and methods. It’s the stage where weak cases are often revealed, prompting immediate settlement discussions. Think of it as the opposing counsel’s fishing expedition—they’ll try to hook you on topics that can later be used to undermine your courtroom testimony or knock your credentials and credibility down a few rungs. So, let’s talk deposition prep and how you can be prepared for any opposing bait that’s cast your way.
What are Depositions?
A deposition is testimony given outside of a courtroom. This sworn testimony occurs during the discovery process, where the parties gather information on the witnesses and evidence planned for presentation at trial. The witnesses, attorneys for all parties, and a qualified person to administer oaths will typically be present at depositions. Depositions are an oral format and as the deponent, you’ll give spoken answers to questions asked by the opposition. Though all parties at the deposition may ask questions, expect the lion’s share of questions to come from the opposing counsel.
Most depositions are electronically recorded—don’t expect to see a stenographer recording your deposition. Of course, the COVID-19 pandemic has also popularized the use of recorded video depositions. Also, on occasion, parties will conduct a deposition by written questions. This is where the parties submit questions in advance, and the expert witness answers only those questions at the deposition. It can be less expensive, as counsel does not have to attend since the questions are known beforehand. However, litigants lose the ability to ask follow-up or ad hoc questions that occur to them in the live deposition.
Deposition Rules & Procedures
Not surprisingly, states all have their own specific rules governing depositions. Most state rules are similar to the deposition rules spelled out in the Federal Rules of Civil Procedure (FRCP), with a few important outliers—including California. In federal jurisdictions, FRCP Rule 30 governs oral question depositions, and Rule 31 is for written question depositions.
Don’t worry, you don’t have to go to law school to perform well in depositions as an expert witness. Your attorney will fill you in on what you need to know for the state where their case is taking place. However, it’s beneficial as an expert to have a general high-level understanding of a few key aspects of FRCP related to deposition.
Federal Rules to Know
FRCP 26(a)(2)(A) sets the stage for expert witness depositions. This rule requires a party to disclose the identity of any expert witnesses it may use to present evidence at trial. Part (B) of this rule mandates that the expert’s report accompany the witness disclosure, and outlines the report content requirements.
FRCP 26(b)(4)(A) establishes that experts who may testify can be deposed. Depositions can happen only after an expert report is provided. Another good thing to know is that if you are retained for expert services but are not expected to be called as a witness, FRCP(b)(4)(D) says you cannot be deposed.
Don’t Get Caught in These Common Pitfalls
Put your best foot forward in deposition with these quick tips.
Outdated or Inaccurate CV
Opposing counsel will research your background and credentials on social media, employer, publication, and industry websites. Before your attorney discloses that you will be a testifying expert in the case, be sure the public details on you, your certifications, degrees, experience, and employment history are accurate and current. Obviously, don’t bring an outdated CV to the deposition. This way, you can avoid hits to your credibility.
No Volunteers NEEDED
One of the worst mistakes an expert can make during a deposition is volunteering more information than is needed to answer the question asked. If you feel the need to expand on a concept, stop yourself. This extra information can lead to trouble and give opposing counsel more ideas for undermining your testimony.
Read and Sign Your Deposition Transcript
It’s common practice for opposing counsel to ask a deponent—you—to waive the right to read and sign the deposition transcript. Put simply: don’t do it. It’s particularly important for you as the expert testifying on a topic to carefully review the deposition transcript to make sure it is accurate. This is a right you don’t want to give up.
Everybody Needs a Break
This may sound so basic, but many experts feel they must carry on and get the deposition over as quickly as possible. They never ask for a break during the proceedings. You don’t need to be a deposition marathoner. You can ask for a break or recess at any time. A short break can help you collect your thoughts or give you a chance to get some fresh air and relax for a few minutes during an intense deposition.
Don’t Expect Softballs
Don’t expect softball questions just because the attorney deposing you isn’t an expert in your area. Opposing counsel will likely have their expert review your report to help them develop detailed deposition questions.
Prep with Your Attorney
Perhaps the greatest tool for helping you succeed during depositions is solid preparation time with the hiring attorney. Schedule a meeting to thoroughly discuss your background, review potential questions, and prepare responses. Tell them everything—even the things you wished you’d never written or said as a professional. This will help them give you strategies to avoid bombshells that opposing counsel may bring up during the deposition to throw you off or diminish your credibility.
The attorney cannot coach you on what to say, but they can help you understand the types of questions you might be asked so you can thoughtfully consider your answers ahead of time. The lawyer’s job is to help you be good at being a witness. Your role is to tell the truth. The lawyer may also review your report with you to ensure you have command of the case facts.
Opposing counsel will use your expert report as a guide for their deposition questions. Take the time to prepare yourself to discuss the facts and assumptions you used in your report. Crisp, precise answers on the methodology you employed to arrive at your opinions are a good thing to practice. Also, be ready to list your sources—publications and industry literature—that informed your analysis.
Armed with this primer and practical tips, you’ll be well-prepared to be a successful expert witness during depositions.
