Expert Witness Depositions
Hi, I’m Steve Babitsky, President of SEAK, Incorporated. I’m here today with Attorney James Mangraviti, and we’re going to be talking about expert witness depositions.
What are the three most important things that experts need to remember about expert witness depositions?
Jim Mangraviti: Okay. I would say things that I teach my experts over and over again, the people I’m training, the following three things.
Number 1, an expert witness deposition is an interrogation not a conversation, and we’ll see an example of that in a second.
Number 2, an expert witness deposition an open book exam, it’s not a memory test.
Number 3; in an expert witness deposition be very careful of absolute answers.
Those are just three bits of advice that I would give an expert witness who’s going to give a deposition.
Steve Babitsky: So can you give us an example of each of these points by doing some role playing with me?
Jim Mangraviti: I’d love to. Now this is an actual case that we ran into, and I’m just going to demonstrate it here for you. Mr. Babitsky, please raise your right hand. Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you, God?
Steve Babitsky: I do. And, you know, the last time I said “I do” it ended up costing about half a million dollars in a divorce action.
Jim Mangraviti: Really? What were the grounds for the divorce?
Steve Babitsky: Do we really have to get into that?
Jim Mangraviti: What were the grounds for the divorce?
Steve Babitsky: Cruel and abusive treatment.
Jim Mangraviti: Was there infidelity as well?
Steve Babitsky: Yes.
Jim Mangraviti: Were these restraining orders issued against you?
Steve Babitsky: Just two.
Jim Mangraviti: So the point we’re trying to make here is it’s an interrogation not a conversation. If you’re having a conversation amongst friends, somebody says, “I do,” you can talk about your divorce. You can talk about whatever you want. When somebody asks you to swear if you’re going to tell the truth, the whole truth, and nothing but the truth, so help you God in a deposition, you don’t want to give out this extra information that you just went through a messy divorce. So that’s the lesson that we’re trying to teach.
The next lesson that we’re trying to teach is it’s not a memory test; it’s an open book exam, Quick demonstration for you. Mr. Babitsky, when were you first retained as an expert witness in this case?
Steve Babitsky: April 14th, 2013.
Jim Mangraviti: Thank you. Again, the lesson here is it’s not a memory test. He didn’t know the information off the top of his head. He had his well organized file with him. He looked it up. So it’s an open book exam.
Okay, the third bit of advice that we’d like to give people is to really be aware of absolute answers. And for that, Steve is just chomping at the bit to do a demonstration with me as the witness. So we’re going to switch roles here. I’m going to be the witness, and Steve is going to be the examiner.
Steve Babitsky: Mr. Mangraviti, have you ever lied?
Jim Mangraviti: No.
Steve Babitsky: How old are you now, sir?
Jim Mangraviti: I’m 45.
Steve Babitsky: So is it your testimony here today that in your 45 years of life you never told a lie? So you never told a lie to your wife?
Jim Mangraviti: No.
Steve Babitsky: You never told a lie to your parents?
Jim Mangraviti: No.
Steve Babitsky: Occasionally you took your wife out to dinner?
Jim Mangraviti: I take her out to lunch. She likes to go out.
Steve Babitsky: And sometimes she puts on a nice, tight red dress.
Jim Mangraviti: No.
Steve Babitsky: A blue dress?
Jim Mangraviti: No, she doesn’t wear dresses.
Steve Babitsky: Pants?
Jim Mangraviti: Yes.
Steve Babitsky: Does she ever ask you sir, “Does this outfit make me look fat?” Does she never ask you that question?
Jim Mangraviti: Yeah.
Steve Babitsky: Does she ever ask you that question?
Jim Mangraviti: Yes.
Steve Babitsky: And did you ever in your life tell her that the outfit she was wearing made her look fat? Just yes or no. Did you ever in your 45 years ever tell your wife that the outfit she had on made her look fat?
Jim Mangraviti: Not that I can recall.
Steve Babitsky: Thank you very much, sir.
So we just saw a demonstration of a 45-year-old man who testified that he never told a lie. Obviously this is ludicrous. Anybody that’s listening to this would know that most people, almost all people, in the entire world have told little lies throughout their live. They may have told lies to their children, to their spouses, to their family, to their co-workers.
So as soon as this gentleman says he’s never told a lie in his entire life, everybody listening to that knows one thing and one thing only, and what’s that? He’s a liar.
Jim Mangraviti: All right. Just to follow up on the points Steve and I were making on that demonstration, another key to being effective as an expert witness at deposition or a trial is active listening. And what you really need to pick up on that question “Have you ever lied” the real word to key on is the “ever” which is that absolute, okay?
And you don’t want to sign off on something that’s absolute generally because there’s going to be exceptions. As Steve was saying, almost everybody has lied in their life.
Steve Babitsky: Jim what resources does SEAK provide to expert witnesses to help them with their discovery depositions?
We have a number of books that we have published for expert witnesses, that we’ve written together, including “How to Be an Effective Expert Witness at Deposition and Trial: The SEAK Guide to Testifying as an Expert Witness.”
We offer training seminars for expert witnesses in various parts of the country throughout the year.
And finally, we work one on one with expert witnesses to help prepare them for depositions and improve their deposition skills, and we’re happy to help.