Deposition testimony

One of the reasons why law firms like to engage Experts who have experience giving testimony in deposition and trial is that they are already “trained” for the process. By reference, the engaging law firm can determine how the Expert handles the pressure of deposition, deals with adversity and articulates his/her findings. The experienced testimonial Expert makes this job much easier. When your otherwise ideal Expert candidate has no testimonial experience there is a risk as to how the Expert will handle being deposed. Some firms put the Expert in a room with a parade of Associates who take their turn at drilling the Expert and ensuring that the Expert can handle the pressures and deliver succinct answers to questions without giving away information otherwise harmful to the client’s case. There is no substitute for preparation. The Expert must know the issues relevant to the deposition, be totally familiar with the documentation supporting his/her opinion and have taken care to leave no issue open for legitimate argument. The Expert must remember the minimal rules:

  1. The 5-second rule. Always take at least 5 seconds to ensure the question is understood and to give the litigation team time to object to the question. The Expert should never hesitate to ask that the question be asked a second time or rephrased if the question’s meaning is not completely understood.
  2. The 30-second rule. If the answer is taking longer than 30 seconds, the Expert is probably providing too much information. The Expert must not elaborate on any answer or expand the answer to include what could be damaging testimony.
  3. The "I can’t speculate" rule. When asked for an opinion on any subject for which the Expert has not been prepared or asked a question relative to documents not reviewed, the Expert must never guess or try to appease the deposing attorney. The answer should be, “I haven’t reviewed that and therefore I can’t speculate on the answer.” This has some legal significance because an Expert cannot be asked or forced to speculate on an opinion. If the deposing attorney produces a document never seen before or analyzed before by the Expert and asked to opine, the Expert is entitled to take all the time necessary to study the document before answering.

A successful deposition will produce sworn testimony that the Expert can rely upon at trial or be impeached by the opposing attorney at trial if his/her opinion at trial is inconsistent with prior testimony or written opinion. Again, prior preparation is the key; having at one’s fingertips the supporting documentation for the Expert’s opinion and committing to memory any and all information relevant to the Expert’s opinion. The Expert will be subject to Voir Dire (French for "to tell the truth") a process of preliminary questioning at trial through which the competence of an expert to testify may be challenged. Giving testimony at trial is the Expert's most important role. It is vital that the Expert follow the pre-testimony preparation and avoid any epiphanies or flashes of insight on the stand. The Expert should be instructed to treat the Judge and all other Court personnel with the respect and courtesy they are due and remain calm and focused during cross examination responding to questions with answers directed to the judge or jury.