Expert Witness Preparation for Depositions
Attorneys should understand how to prepare an expert witness for deposition. Proper expert witness preparation is critical and is your job as retaining counsel. We recommend the following protocol for preparing an expert witness for a deposition:
- Obtain past deposition transcripts of your expert witness and opposing counsel.
- Schedule the deposition for a favorable time and location.
- Orient your expert witness
- Explain the likely goals of retaining counsel
- Provide your expert with general advice
- Tell the truth.
- Actively listen.
- “Do you know what time it is?”
- Picture question as if written on white board.
- This is a deposition, they are not having a friendly conversation with opposing counsel.
- Their job is to answer the questions truthfully and articulately.
- They should focus on the actual question asked.
- The deposition is open book – if your expert witness needs to look something up they can.
- If your expert witness doesn’t know or doesn’t remember, they should just say so.
- Don’t answer an unintelligible or confusing question.
- Do your homework and be very well prepared to answer key questions using headlines and bullet points.
- Identify areas of vulnerability for your expert witness.
- Independently ask your expert witness to identify additional areas of concern.
- Conduct a mock deposition with your expert witness.
- Explain to your expert witness how he should prepare on his own.This involves the following steps:
- Having a full, complete, and exhaustive knowledge of the facts in the case, which will help
- Your expert witness identify questions based on incorrect facts
- Identify mischaracterizations
- Make your expert witness more confident
- Your expert make a favorable impression as a witness
- Review important dates such as:
- when the expert was first contacted by counsel,
- when the expert was retained,
- when the records were received and from whom they were received,
- when the expert formed his opinion(s) in the case,
- the date of the accident in question, and
- the date(s) key tests were performed.
- Knowing his CV cold.
- Possessing intimate and complete familiarity with any reports or other documents that the expert has authored or signed in the case as well as any expert declaration
- Personally touching every piece of paper in the file.
- Organizing the file oneself to allow quick and easy access to information even while under great stress.
- Researching answers to common and expected “money” questions:
- Their hourly rate.
- How much they have billed to date.
- How much they are owed on the case to date.
- The % of their income that comes from legal matters.
- What % of their work is plaintiff v. defense.
- Thinking of the most difficult questions that counsel might ask and being prepared to truthfully and artfully reply to them.
- Being able to express and defend each and every opinion the expert has expressed in the case.
- Demonstrate to your expert the deposition tactics they are likely to face, such as:
- Show your expert techniques for how to appear confident and make a positive impression on camera.
- Expose your expert to trick and difficult questions.
James J. Mangraviti, Jr., Esq. is a principal of SEAK, Inc. the expert witness training company. Jim is the co-author of How to Prepare Your Expert Witness for Deposition. SEAK provides expert witness deposition preparation services for attorneys and expert witnesses.
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