Law Fact #2 – Understanding Depositions
A deposition is a sworn, out-of-court testimony given by a witness in a lawsuit. Depositions are part of the discovery process. By understanding this process, an expert can be more prepared, give clearer testimony, and avoid unnecessary complications.
The Deposition Process
For an expert witness, the deposition process begins well before the deposition itself. The attorney will likely prepare the expert. In preparation the attorney will focus on issues important to the case and effective communication in the deposition.
Depositions are scheduled well in advance. The witness is asked to swear that the testimony they give during the deposition is true. Then the questions begin. The majority of the questions will be asked by opposing counsel.
Types of Questions
When deposing an expert, the attorney's goal is not to impeach, discredit, or trick the expert. That being said, opposing counsel has a lot more freedom in what questions they can ask in a deposition then at trial.
Most depositions will start out with easy routine questions. These will include questions:
About the expert’s background and experience; and
How they got involved in the case
After these foundation questions, the questions will move on to explore the expert’s specific opinions and understanding of the case. These include questions about:
The sources, research, and other facts the expert used in preparation for and while considering issues in the case
Any testing or examinations performed as part of forming their opinion
Evidence, publications, processes, and other factors that may weigh against their opinion or lead to a different conclusion
The Role of Retaining Counsel
Opposing counsel will ask the bulk of the questions during a deposition. However, the attorney who retained the expert witness will most likely not remain silent. Retaining counsel is particularly likely to participate by making one of two moves.
A "stipulation" is, in its most fundamental sense, an agreement to a fact or item in dispute. The retaining counsel may respond to a question by saying, "We'll stipulate to that." In other words, they won't make the opposing counsel prove that that fact. Instead, both sides agree to consider that fact as true. When an item is not controversial, attorneys frequently use stipulations to expedite the deposition process. The qualifications of an expert witness or the deadline for distributing a finished expert report are two examples.
During a deposition, there is no judge present to oversee the proceedings. Consequently, the role that objections play in a deposition is not the same as the role they play in a trial. However, retaining counsel has the option to make an objection to keep it on the record for potential future consideration by a court. In most cases, even if an attorney objects, the expert will still be required to respond to a question.
It's a good idea to develop the practice of pausing after an attorney asks a question before responding. This pause will give you time to think about the question and your answer. Additionally, it provides retaining counsel with a chance to agree or object as needed.
When Expert Depositions May Occur
Court rules regulate the timing of practically every stage involving expert witnesses in both state and federal courts. This includes when both parties must disclose the identities of experts and when they must exchange expert reports. It also includes when an expert witness may be deposed. A notice of a deposition of an expert witness must comply with the court rules for deposition notices.
Length of a Deposition
The duration of depositions is frequently regulated by both federal and state court rules. For instance, the Federal Rule of Civil Procedure 30 limits a deposition to one day or seven hours, unless the court gives permission for a longer deposition. According to Utah court rules, expert witness depositions are limited to "four hours of oral questioning from all parties."
These court rules vary for each state, and courts can adapt time limits as necessary. As a result, it's crucial to speak with the retaining attorney about the anticipated duration of every given deposition. Preparing for the maximum time length can help an expert witness avoid impatience or sudden emergencies.
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.
Only Answer the Question Asked - 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. Your role is to stay ethical and professional. Let retaining counsel worry about “wins” and “losses.” Leave Yourself Room When It’s 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 to “form.” These objections often address questions that experts can’t answer without stepping into some kind of trap.
It’s Not About You - 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.
In conclusion, testifying as an expert witness is a skill that should be practiced and perfected. Those who testify as expert witnesses must remember that they are there to be impartial and must stand as a trusted source of knowledge. It’s also important to keep in mind that the opposing counsel’s attitude is not personal and is an attempt to advocate for their client. Pay attention to objections, be prepared, and stay calm during the process in order to ensure that you are the best possible expert witness.