How to Prepare Your Expert Witness for Deposition

TASA ID:

• What is my expert likely to be asked at deposition?
• How do I quickly train my expert to be a better listener?
• What should I explain to my expert about deposition procedure?
• How should I suggest that my expert prepare and study on his own for deposition?
• What are the most common costly mistakes experts make time and again and how can I prepare to avoid these?
• How should I prepare my expert for questions setting up Daubert and qualifications challenges?
• Where time is limited, how should I prepare my expert quickly and efficiently?
• What key facts and information does my expert need to know cold?
• How should I build the confidence of an inexperienced expert?

Transcription: 

Matt: Good afternoon. Welcome to today's TASA webinar, How to Prepare Your Expert Witness for Deposition. How your expert performs at deposition is likely to have a critical and sometimes dispositive influence on the outcome of your case. How you prepare your expert may well determine how he or she performs. Preparation of your expert is within your control and is your responsibility as retaining counsel. Prepare your expert well, and enjoy the rewards. Fail to prepare your expert and risk the consequences.

This webinar will provide you with a proven protocol to effectively prepare your expert witness for deposition. This webinar will answer the following questions, what is my expert likely to be asked at deposition? How do I quickly train my expert to be a better listener? What should I explain to my expert about the deposition procedure? How should I suggest that my expert prepare and study on his or her own for the deposition? What are the most common costly mistakes experts make time and again? And how can I prepare to avoid these? How should I prepare my expert for questions setting up Daubert and qualifications challenges? Where time is limited, how should I prepare my expert quickly and efficiently? What key facts and information does my expert need to know cold? And finally, how should I build the confidence of an inexperienced expert?

The presenters for today's program are Steven Babitsky and James Mangraviti. Mr. Babitsky is the President of SEAK and the co-author of the book "How to Prepare Your Expert Witness for Deposition." He was a personal injury trial attorney for 20 years, and is the former managing partner of the firm Kistin, Babitsky, Latimer & Beitman. Mr. Babitsky has helped expert witnesses and their attorneys prepare for deposition in a broad range of cases including: antitrust, patent, medical malpractice, wrongful death, computer forensics and many others. He has provided training for the Federal Bureau of Investigation and the Federal Aviation Administration, and has worked with numerous forensic and financial companies including Fortune 500 companies.

Mr. Babitsky is the co-author of the text "How to Become a Dangerous Witness: Advanced techniques and strategies," "Writing and Defending Your Expert Report: The step by step guide with models," "How to Excel During Cross-examination: Techniques for experts that work," "An Agency Guide to Expert Witnessing," "And How to Excel During Depositions: Techniques for experts that work." Mr. Babitsky is the co-developer and trainer for the How to be an Effective Expert Witness seminar, and a seminar leader since 1990 for the Annual National Expert Witness and Litigation Conference. Mr. Babitsky trains hundreds of experts every year.

James Mangraviti has trained thousands of expert witnesses through seminars, conferences, corporate training, and training for professional society. He is also frequently called to train and prepare individual expert witness for upcoming testimony either by the expert personally, the expert's employer, or the expert's retaining law firm. James is a former litigator with experience in defense and plaintiff personal injury law and insurance law. He currently serves as a Principal of the Expert Witness Training Company, SEAK. He received his bachelor of arts and mathematics from Boston College and a law degree from Boston College as well.

He's the co-author of 24 books including: "How to Prepare Your Expert Witness for Deposition," "How to Become a Dangerous Witness: Advanced Techniques and Strategies," "The Agency Guide to Expert Witnessing," "Depositions: The comprehensive guide for expert witnesses," "How to Excel During Depositions: Techniques for experts that work," "Writing and Defending Your Expert Report: A step by step guide with models," "The Biggest Mistakes Expert Witnesses Make and How to Avoid Them," "Cross-examination: The comprehensive guide for experts," "National Guide to Expert Witness Fees and Billing Procedures," and "How to Market Your Expert Witness Practice: Evidence-based best practices."

We will take questions and answers throughout the program, but we will dedicate the last 10 minutes of this program solely to questions and answers. If you have a question, please us the chat Q&A feature found on the right hand side of the screen to submit your questions to the presenter. We encourage all attendees to submit questions throughout today's presentation. Tomorrow morning, I'll send out an email with the link to the archived recording of this program. We do ask that you take the time to fill out the survey that will appear on your screen after today's program is over. Now I invite you to sit back, relax and enjoy. I'm going to turn the presentation over to our distinguished guests, James and Steve. Guys, it's all yours.

Steven: Thank you very much. This is Steve Babitsky. And I'd like to welcome you to the webinar. As a former litigator for 20 years, many things are not within our control during litigation. One of the things that is within our control, however, is the ability to properly prepare our expert witness for a deposition. And as you know, how your expert witness does at the deposition may very well determine whether or not the case is won or loss. Preparation is within your control, and my experience is that many experts are not getting the proper preparation, counsel is not devoting enough time to preparing them for their depositions.

In my view and in view of others it is the rule of the standard of care for litigators not to properly prepare their expert witnesses for depositions. So if you prepare your expert well, the expert will do well and your case has a better chance of success. If you do not prepare your expert witness, the expert will probably not do as well as he or she could, and in fact, we as litigators, have no one to blame other than ourselves. How serious this problem is can be illustrated by a recent case that I worked on as a consultant working with an expert witness. The expert asked the attorney to properly prepare for him for a key deposition involving several million dollars in real estate litigation.

The lawyer said to the expert, "Have you ever given a deposition before?" The expert said he had. The lawyer said, "You'll be fine." And then he added, "If you have any questions, give me a call." In my view, that's not proper preparation of an expert. The expert was so upset about the cavalier way the attorney was handling his preparation that he in fact retained us to properly prepare him for his deposition, which he did. And the deposition did do well.

So we're gonna lay out a protocol for you to properly prepare your expert witness. We know as former trial lawyers that trial lawyers are busy, they're dealing with a lot of different time constraints and you do not have time to spend endless hours preparing your expert witness for deposition. However, there are effective methods of doing this in an efficient manner. Most poor expert witness depositions, in my view, could have been prevented with proper preparation. As part of the work we do as consultants for attorneys helping them prepare their experts and for experts themselves directly, we have an opportunity to look at many deposition transcripts and many deposition videos. And we see how poorly some of the experts have done.

And just assuming that a person or an expert who has testified who is a well-seasoned expert does not need to be properly prepared, in my view, is a serious mistake. I've never met an expert witness who couldn't improve with some preparation. And actually, the good expert witnesses want to be prepared. Why counsel is not spending enough time with the expert witnesses, it's not really clear to me other than the counsel sometimes may be overcommitted. So we find that even in large cases involving millions of dollars sometimes, counsel is not spending adequate time preparing the expert witness. And all expert witnesses can improve.

So what can and should the lawyer do? The first thing I would suggest is talk to the expert about his or her areas of concerns. I think it's important that you build a bond with the experts, find out what they're worried about. Because if they're worried about something, it's crucial. It doesn't matter if they're worried about where to park, it doesn't matter if they're worried about some specific questions. Find out what they're concerned about and deal with it directly. And the second thing I would suggest is that you try to simplify the case for the expert. Find out what...go over with them what they will and will not be testifying about, and then simplify that for them.

So how can you get the expert better in a hurry? The first thing I would suggest is get a copy of the expert's past deposition transcripts, more videos. This will immediately let you look at and diagnose what problems or mistakes they're making. And we do this all the time routinely. We look at a deposition transcript, and as a trial attorney, you'll be able to quickly to hone in on their problem areas. A lot of times it involves poor listening skills, they ramble on, they interrupt the questioner, they don't know the issues, they don't know what they're going to be offering an opinion on. They say things like, "I don't know, but..." And then they ramble on, they volunteer information, open up additional areas of inquiry, they do not and have not discussed with counsel how much to expound on different areas, they don't know if they should just answer yes or no. They don't know if it's crucial that they lay out their methodology and so forth.

So these are things that you can go over with your expert, and these are things that you can help them improve immediately. Also you want to make sure that they're not going to offer opinions outside their area of expertise, they should not be responding to non-questions. If somebody says, "Ah-ha," that's not an invitation for them to drawn on and volunteer all kinds of information. They need to know when to put a period and stop talking, and that's something that's very hard for experts to learn. Very often, experts have deep, deep technical knowledge about specific areas of their expertise. What they need to...what you need to explain to them is we do not need to know everything you know about your area of expertise. What you need to tell us is what we need to know, not everything that you know.

So reviewing past witness deposition transcripts will help. You can also look at opposing counsel. Maybe, if time permits, show them some of his or her videos and maybe some of the deposition transcripts so they can identify the style, the approaches, the questions they're going to be asked. It's very helpful if the expert can see the lawyer in action on the opposing counsel to see if he or her will use a soft approach, a good old boy approach, yelling and screaming approach, intimidation factor, or uses a softer side. These are things that can be done in each and every case and can be done quickly and efficiently. Jim?

Jim: Thanks, Steve. This is Jim Mangraviti. One of the things that you can do really do to help your expert and to help prepare them to do a good job is a simple thing such as communicating with your expert witness and taking a time where your expert will most likely have time to be prepared and will be fresh. And you really wanna have a communication, have some type of a conversation with your expert about when they are best. Some people are morning people, some people are night people. Steve and I, we get up very early, by 6:00, 7:00 at night, we're all done. You don't wanna schedule our deposition at 5:00 or 6:00 after work, because we're not going to be at our optimal performance. So that's an easy thing you can do, low-hanging fruit.

You do have some flexibility when scheduling the deposition. Try to get it done when they're gonna be fresh, when they're gonna be ready to go.

Now another point of controversy that you may have with your experts, it can really save the expert a lot of time in a very easy way is by suggesting to the expert that it is extremely ill advised to have the deposition in their own office. And a lot of sophisticated experts get this. A lot of experts don't, and they think that really it's an advantage to have the deposition in their own office. You want to explain to them why that's not the case, and you wanna give them advice to have the deposition out of their office. How would you explain that to them? Well there's a bunch of problems with having the deposition in the expert's own office. First, you have informal discovery. You go into the expert's office, you go into the expert's library and you ask the expert, "Do you consider such and such book to be a reliable resource in your field?" "Absolutely." "Okay, then why do you have it on your shelf behind you here?"

It could be a big problem even just finding out what's going on in the office, taking a look around, and letting those deposing lawyers into your office so they can conduct informal discovery. Second, accessibility to records and other things. Your expert is asked about something, he doesn't have it, and they'll say, "Okay, we'll just take a break. Go get it. We'll go off the record, go find it." Which could be problematic.

And then the final thing, which they really should keep in mind, is that there's probably no place in the world that is more distracting than your own office. Nothing good almost ever happens there. Everything that happens there is going to stress you out or distract because everybody has work to do and there's problems that are arising and there's all kinds of things like that. So getting the deposition out of the expert's office is actually removing sources of potential distraction and we think of that as low-hanging fruit to help prepare the expert.

You wanna orient your expert witness. And as Steve mentioned, as much as you can do... He mentioned a couple of things that I wanna sound off on. Number one, you definitely wanna find out what the experts are concerned about and we're gonna talk about that and you need to address those concerns. But what you'll find when you ask that question is that they are freaked out and worried about the easiest, most fixable things. And instead of concentrating on, like Steve said, getting the case down to 5 or 10 or 15 index cards with, "These are my opinions, these are why I'm qualified, this is why the other guy is not qualified, this is why the other guy is wrong," etc., etc., the key things that they need to articulate in the deposition, they're worried about, "Where do I park?" They're worried about, "How do I dress?" They're worried about, "Gee, what if somebody asks me why I left this job 25 years ago?"

And these are all very, very easy problems to deal with, but this is what your expert may in fact be worried about, which you'll find when you actually ask them, "Hey, what are you worried about?" So you wanna remove as much anxiety as possible from your expert as part of your preparation so they can focus on the important thing, which is truthfully and articulately explaining both their qualifications and their opinions. Which is really what it's gonna be at at deposition. So you wanna go over housekeeping issues such as the anticipated length of the deposition, parking, dress, the attorneys, whether they're gonna...which attorneys are gonna be there, whether the opposing expert is gonna be there, whether the plaintiffs or the defendant is gonna be there. So you don't want your expert to be distracted or freaked out when he gets into the deposition.

And then obviously of course, one of the things that the experts are constantly worried about is how they're gonna get paid. And you wanna make sure that that's all settled up front because you don't want your expert worried about, "Gee, how am I gonna get my money?" You want them worried about, "How do I truthfully but articulately explain what my opinions are on this case and how I came up and why the other guy's opinions are wrong." Okay?

Now it's important to explain the basic legal rules of a deposition. Steve and I have been training and teaching depositions for years and years and years on teaching expert witnesses, and it's amazing to us how many experts truly have no clue...experienced experts, people that have been testifying for 15 years, why an attorney can ask a very broad range of questions at a deposition. They have no idea from the defense objects and then tells you to answer. So it really behooves you to go over the rules of the deposition even though this expert may have been deposed a few times or many times. Because nobody's ever done that. Okay?

So the basic rules obviously, the lawyer under Rule 26 has tremendously leeway in terms of what they can ask in a deposition. And what you wanna do to explain to your expert witness is say, "Listen, the reason we have trials is to determine credibility. You're an expert witness in the case. Your credibility is an issue. And within certain limits, they can ask you anything that has to do with your credibility, anything that reasonably calculates to lead to the discovery of admissible evidence, a very, very broad standard. So don't worry about it. Don't get aggravated by the fact that they're gonna ask you some questions that may not seem relevant, that may seem a little tangential, or whatnot. You're getting paid by the hour. Just concentrate on the question and answer the question." Okay?

You need to explain how objections are gonna work. There's no judge who can rule on the objections, so generally speaking, I'm gonna make an objection and make it for the record. Listen to my objection, because it may contain helpful information. But then just answer the question, don't worry about it. This is the reason why we're still going on afterwards, because there's no judge to rule on the objection. This is how it works.

And then obviously, you wanna explain discoverability and appropriateness of expert witness retaining counsel communications in the jurisdiction in question. If you can't talk to the witness about the case during a break, tell them that beforehand, tell her that beforehand. Let them know and let them know why so that again, we're removing anxiety. Which is very, very important. You want to explain to your witness as well the likely goals of retaining counsel, and this is important. So one of the most important things that your expert needs to understand and that you wanna focus on is, like, "Listen, the opposing not only is interested in what you have to say, Mr. Expert or Ms. Expert. Counsel is interested in how you say it. They're sizing you up as an expert. Do you look nervous? Are you stuttering? Are you confident? Are you cocky? Are you arrogant? Are you articulate? Are you stuttering?"

All of these things matter and it's important that the witness understands that their delivery, their tone, how well of a witness they'd likely to be at trial is something that they're being sized up on. So they need to understand. They need to understand that the lawyer at the deposition, the opposing lawyer, is trying to build a record, a transcript that can lock them down at trial. It's an absolute answer, it's yes or no. So if they give any type of a different answer at trial, they're gonna be impeached with their prior inconsistent deposition transcript.

You need to explain that to your expert, you need to work with your expert. We'll talk about that in a few minutes on where appropriate and truthful, leaving a little bit of wiggle room to an absolute locked down type question. And we'll talk about that later. Build a record to exclude your expert on the Daubert, Frye or Rule 702. Never ever, ever assume that an expert understands what these are and how these rules work, because you'd be surprised. A lot of experts, especially on the newer side that have been to a Daubert challenge have never had this explained to them. And when somebody asks them, "Gee, did you base your opinion on any period you studied?" They'll say, "No." "Well what's the period you study of everything else?" So you need to go through with your expert witness, in any type of a case where Daubert might be an issue. "Hey, what's your methodology?" Go through all Daubert factors and make sure that they understand what the Daubert factors are and they're able to articulate truthfully and articulately, why their testimony is not junk science. What does it rely on? Why is it generally accepted? When you say that, they need to back it up. It's generally accepted in the field because it's being used by X, Y and Z, etc., etc., etc.

The same with Rule 702, their qualifications, knowledge, skill, expertise, training or education. Those are bullet points that your expert should be able to articulate why they're qualified in each and every area that they will be testifying on. And also you wanna cover what Steven said earlier. One of the most important things that you can do in preparing an expert is to explain to your expert and to make sure you and your expert are on the same page as to what they will be and will not be testifying on.

Because as you probably know, expert witnesses get themselves into tremendous amount of avoidable trouble when they testify in areas that they have no business testifying in. And you need to make it clear to your expert that it a perfectly appropriate answer for an area that they're not qualified in is to say, "I can't speculate on that. I'm not qualified." And an expert needs to hear that, because a lot of experts...believe me, we train and we've been training them for years, think that because they're an expert, they have to be an expert in everything. And it's a very preventable mistake if you go over that with your expert beforehand.

Make sure expert is aware that under the rules the lawyers can fish around for damaging information. And everybody has some warts. And what experts should be prepared to do as part of your preparations to say, "You know, if you flunked out of college 40 years ago, and they asked you how'd you do in college, say you flunked out." Because the bottom line is, nobody cares. It's only gonna become a problem, something that happened 40 years ago, if they lie about it or if they're defensive or evasive. And the lawyers need to understand that as part of the preparation. The experts need to understand that as part of the preparation process, because they're not gonna understand that.

You wanna provide your expert with general advice and these would be the absolute minimums that we would go over with an expert that we would be preparing. Number one is really tell the truth. The truth will set you free. The truth means you don't have a very good memory. It's their job to answer the questions truthfully but articulately and you wanna hammer that home to them. Active listening skills. This is one of the...you need to advise experts that your expert needs to have active listening skills. One of the biggest problems that Steven and I have seen and one of the things that we spend a lot of time on when we're preparing an expert is making sure that they're active listeners and improving their active listening skills.

So there's a whole series of questions that you can ask a potential expert witness when you're preparing them that would give you a diagnostic indication of how they are at active listening. A simple one we have on the slide is, do you know what time it is? If they answer 3:00, they're not a good active listener obviously. The answer to that question should be yes or no. One of the things that we like to do to try to make your experts aware of this, is that they need to understand every word in the question, they need to be able to understand. And one of the things that we recommend to our experts as a technique is say, "Listen, take a step back. Pause. Try to picture the question as if it's in writing in front of you, as it's written on a whiteboard." And a lot of times, that can actually help.

The other thing we do when we're cross-examining...when we're preparing, excuse me, an expert witness at deposition, we'll ask a question. The expert will respond to the wrong question because they're not active listening. Then we'll go back and we'll say, "What question did I ask you?" Okay. And a lot of times, they can't repeat the question which means that they're not active listening enough. The fourth thing that we'll do and you can do this as well, is you show clips of other experts at depositions, which I'm sure you guys have a on video. You could show a question from a deposition, pause the tape, and then ask the expert, "What question was asked?" And if they can't repeat that question back pretty much exactly, they're not active listening enough and they need work on that.

Another huge problem that we see in experts all the time is that the experts wanna have a conversation with the person that's deposing them. And you really need to hammer home to these people that this is not a conversation, this is not the faculty lounge. This is an interrogation literally, and it's an interrogation under oath. Their job is to truthfully and articulately answer the questions. Their job is to not have a conversation. That means they ask the answer the question that's asked, that means that they wait for a question to be asked before they start talking, that means when they finish truthfully and completely answering the question that they shut up and wait for the next question. And these are the things that you have to hammer home as part of the preparation.

And a lot of experts, even experienced experts, need help on that. They really need to focus on the actual question asked. We talked about that. That goes back to what we were talking about earlier in terms of active listening.

Leaving wiggle room is really, really important. And this is a fundamental technique that you want to explain to your expert witnesses. The dance here is that the lawyer on the opposing side is trying to lock down your expert so that there's absolutely no wiggle room and we know exactly where that expert witness stands. But of course, sometimes the most truthful answer and the appropriate answers for the expert witness is an answer that gives the expert a little bit of wiggle room. So for example, one of the common questions that an expert will be asked at a deposition will be, "You told me all of your opinions here today. Do you intend to give any other opinions at trial, when this case goes to trial?"

And what the lawyer is obviously looking for is a yes or no. If it's a yes, tell me what those opinions are. If it's a no, we move on. This expert has been locked down. And those may be truthful answers, but a more truthful answer may be, "It depends." It depends on what? "Well it depends what I'm asked." "What do you mean it depends upon what I'm asked?" "Well if I'm asked a question I haven't considered yet, I may give a different opinion." Okay. The lawyers get the...the expert's giving himself a little bit of a wiggle room. Another good question to practice this with, "Did you discuss this case with anyone else?" It could be a yes. "Tell me who you discussed it with." A no, move on.

Well the honest answer would be, "Not that I can recall at this time." The expert's giving himself truthfully if he can't recall discussing with anybody else, that should be a truthful answer. And it gives the witness a little bit of wiggle room, which is probably the most appropriate answer.

Another thing that experts get really freaked out about that you could really help calm them and focus them on what's most important, is they get worried about some minor detail, some obscure fact, this, that or the other thing. Explain, hammer home to your expert that this is not...a deposition is not a closed book oral examination. It's an open book examination. They're gonna have their report there. They're gonna have their file there. And they should be able to look these things up if they don't know the answer. And that's what's going on at a deposition.

And when you tell them that, and when you tell them, "Gee, when you look something up, it'll also give you a couple minutes, or a few seconds to a couple of minutes to catch your breath and to think." They're really going to appreciate that advice. And simple advice like that will improve their performance at deposition. Another thing to keep in mind with the expert which is a huge problem is a lot of these experts believe that they're smart, they're being paid a lot of money so they need to know everything. And what I explain to the experts that I'm prepping is that, "Listen, if I could dig up Albert Einstein and put him here right next to you here today, I can guarantee you I can ask him an unlimited number of questions that he would not know the answers to." So you have to be very comfortable by just saying, "I don't know."

And for many questions, "I don't know," is a perfectly legitimate answer. Now for some questions that's not a legitimate answer. If they ask you how you came up with your opinion, "I don't know," ain't a good answer obviously. But there's a lot of things obviously, that's a perfectly fine answer. And you need to drill that into your expert that there's nothing wrong with that.

A lot of times at deposition, the lawyers, when talking about an expert deposition, things will be very technical. Sometimes the lawyer can get tired and a lot of times, the lawyers will ask an unintelligible or confusing question. You wanna throw some of these at your expert witness during your deposition preparation and make sure they don't answer it unless they understand it. Okay? So you teach them to say, "I don't understand your question. Could you please rephrase it?" And when the follow-up comes back, "What part of it don't you understand?" The answer should probably be, "All of it," okay? So make sure the expert is not afraid to push back and say, if it's an honest answer, "Listen, I don't understand the question."

And probably the most important advice that we have, and Steve and I are gonna go over this again and again, is you want your expert to do their homework, and this is what you're gonna do at your preparation and be extremely well prepared to answer the key questions using a headline and bullet point format. What do we mean by that? Something you can put on an index card. What are the key questions? What's your opinions? I have four opinions. One, 2, 3, 4. Tell me the basis why you came up with each of these four opinions. Well for opinion number one, this will go on an index card. These are the three or four reasons. Opinion number two, these are the three or four reasons. We're trying to simplify this.

Why am I qualified? What are my experiences? All of these should have bullet point type answers that the expert witness can come back to. Why do you disagree or why is the other expert wrong? Bullet point reasons, 1, 2, 3, 4. What you wanna do as part of the deposition, these experts are maybe completely overwhelmed, you wanna simplify it, "These are the key things that you need to be prepared to articulate." And if you can get it down to a few index cards, you've done your job. And again, if you look at the next slide here, prepare your expert witness for the 10 or 20 issues that they must be prepared to answer questions truthfully and articulately.

And also, as Steven mentioned, very, very important, independently ask your expert to identify, "Listen, what are you worrying about?" And as I said earlier, a lot of times the answers that are gonna come back are gonna be trivial things that you could take care of very, very quickly. Which will help your expert relieve anxiety and let your expert witness focus on things that they really should be focused on.

Now the flipside to the is sometimes the expert will come back with some really good insightful things that you didn't think of and you can help the expert work through those issues. Because as we said before, unresolved issues can and do become a big distraction, which you wanna avoid. Steven?

Steven: Yes. A couple of things before we move on. As we move onto the next slide, I'm just following up on some of the points Jim made. One think that I think you wanna be very careful about and it's not in the slides really, is you really wanna make sure that you're not gonna push them outside of his or her comfort zone. It may be easy to push the expert and push the expert and push the expert, but actually if you push them too hard outside of their area of their comfort zone, they may resent it and their testimony would not be as strong as it would be if they feel very strongly about their area of expertise. So I would be careful about pushing them too hard to testify about things they're not comfortable about.

Of course they need to prepare and they need to know the assumptions they made, what they did, why they did it, how they did it, what they did not do, why they did not do it and they need to be able to express their methodologies further and their opinions. So how should the expert prepare on his own? The expert needs to have a complete understanding of the facts. The expert needs to be made aware of that just because they wrote their report six months ago, two years ago, that they do not know that report better than opposing counsel. Opposing counsel will have studied that report for many days or weeks. They may have had paralegals working on the report. So the expert must be made aware of the fact that they have to have an intense, a nuance knowledge about their own reports and the facts in the case.

They cannot take it too casually. If opposing counsel finds out that they really don't have a good command of the facts, the deposition will be a nightmare, because they'll ask them specific factual questions. Did you do this? Are you aware of that? And then the expert will fall apart because they don't have deep knowledge about the facts. So they must be convinced that they must study the facts and have an excellent command of the facts and the knowledge in the case. They also should be made aware of the fact that if things do go badly during the deposition, if for example the counsel is building a momentum and they're kind of slipping down the drain, that the facts is always a safe haven to go back to and talk about the facts.

Because there's always usually disagreements about the facts, and that's something that should be within their comfort zone to go back to in case they are doing poorly. They need to know the important dates, when they were contacted by counsel, when they were retained, where they got the records from, when they formed their opinions. And even simple questions like, "When you formed your opinions," if it hasn't been gone over with them, many of them will flounder around. Counsel may ask them to draw a timeline. And if they don't know enough to say that they formed their opinions essentially when they issued their report, they may flounder around with these kinds of things.

It's been our experience that the major problems that develop at depositions due to poor preparation is because of the fact the counsel did not identify the likely areas of inquiry and did not prepare them for the difficult questions they're going to be faced. If you can identify 90% of the questions and areas of difficulty and go over with them, they will normally do very well. It's the questions that you never heard of before or haven't considered, which usually trips them up and causes all kinds of aggravation. So if your damage expert or if your counting expert can't answer a question like, "What's your margin of error?" then they completely discombobulate during the deposition and the whole thing goes down the drain.

I was working with an expert the other day, a couple of days ago during a session, and this is a damage expert. And it was a marketability issue, you have a 5% marketability discount. All I asked him was, "Where did you get the 5% from?" After around 15 minutes of hemming and hawing in different attempts, he finally admitted that he couldn't explain. I asked him what the formula was for coming up with the marketability discount. Of course there is no formula. But he kind of bought into this formula thing and floundered around for much too long before he finally caught on, and then determined that there was no formula. This is based on his knowledge and experience.

So it's these kinds of things, they have to be squeezed out. If you can get these out on the open, get these out on the table and say, "These are the 10 things, the 10 likely areas of inquiry," and go over each one so they're prepared, they will do better. If in fact they are hit with five or 10 different areas of new kinds of questions they've never thought of or never considered, they are highly unlikely to be able to get all of those down correctly. And all the opposing lawyer needs is one disconcerting question that upsets the expert before the expert can discombobulate and then forget almost everything they know.

So review the important dates. We have them listed here. And they should know most of these, and if they don't know them, look them up. Don't guess. And every time I look at a transcript, the first thing I do is I look at the index and look for the word guess. And it's remarkable how many times they use the word guess. I had one case with a damage expert who was talking about damages and eventually testified that it was a guestimate. Well as you might expect, a guestimate is not a good way of expressing your methodology if you're a damages expert. And that damage expert was averaged out.

Okay. So you need to his CV, resume pole [SP]. It should be accurate, it should be up to date, it should be dated, there should be additional copies for the party so they can just hand them out. He should be able to explain what's on his CV and what's not on there without any difficulty. He needs to know his reports extremely well. As I said before, the opposing attorney is studying those reports, they will know them. In most cases, the opposing attorney will know the reports better than the expert. The expert needs to be forewarned that people are doing intense study on his report. He needs to understand that he's not gonna just waltz in there because he wrote the report two years ago, and be able to withstand questioning. The expert needs to remember that failing to have intimate knowledge will be a serious problem. And he needs to be able to talk about the reports and the affidavits. Maybe any answers to interrogatories, any other documents that involve him or any information that he's provided, needs to be your expert declaration, he needs to be familiar with them so they don't pull out some answers to interrogatories and then try to develop some daylight between his opinion and the answers to interrogatories.

If the expert hasn't drafted a report and sometimes counsel or depending on the form, a report is not done, you really wanna talk to the expert about if he or she can bring anything besides a report. Can they bring a list of their opinions? Experts are very, very concerned about the fact that showing up in a deposition with no reports, no documents, or anything else, they feel very, very afraid of this. If you can permit them to come up with their written opinions, even if it's only one page of opinions, or some timelines or some notes, or other aids they can bring with them, that will make them much more comfortable. Obviously, you've gotta want to look at what they're gonna bring and share it with opposing counsel. But my experience has been that if they come with these documents, if they come with a list of opinions, or other things like that, opposing counsel will normally pounce on these documents and spend the majority of the time at the deposition, discussing these. Which is exactly what you probably want. Because now you've set the agenda and the opposing counsel is now going by your agenda and discussing something that the expert has spent time and you've spent time on looking at. So having them bring a list of opinions is actually very often very helpful.

So they need to organize their file. They need to touch every piece of paper in their file. If they're not gonna come with a paper file, you wanna discuss with them what they are going to bring, what's gonna be on the computer? If there's a voluminous amounts of records and you're going to be doing it on the computer, they have to be able to locate documents quickly. If it's gonna be a table file, they need to organize it so they can locate the documents in an organized fashion. There's nothing more anxiety provoking than knowing your expert has documents in the file and the expert not being able to come up with the documents in short order. The longer they go fishing around for the things, the longer they...the more concerned they get.

If the expert file is going to be copied and it's not super voluminous, I think making an exact copy of the file, so when the opposing counsel asks to see their file, you just hand them the duplicate. There's two files, they can have either one of them. Giving the file, the expert's only copy of a file to the opposing counsel and getting back piece meal or getting back in a disorganized fashion is actually not a good idea. In my view, I would just give them a complete duplicate copy of their file and say, "Here's the file. Everything is in there." And this way the expert maintains control of his file, documents are not lost, the file is not messed up, and he can reference the file.

With regard to questions about money, they need to be comfortable about talking about how much they've been paid, their hourly rate, what's the bill, what their bills are and so forth. What percentage comes from legal matters, what percentage of the work is plaintiff or defense. Very often experts either one, don't know these answers and even worse, when questioned about them, they kind of make up these number because they feel they should know them. So a person that does 50% of his work doing forensic work will say it's 15%, because he actually doesn't even know. And very often, they think it's a throwaway question, which is kind of is, about plaintiff and defense. And they'll say it's 50/50. Well you can rapidly look at their 26D statement and can actually see it's more like 80/20. And there's no reason for them not to be able to answer those questions in a simple and direct fashion.

They should think about the most difficult questions the counsel might ask them. And they should be going through the things that you should be talking to them about. What are you most concerned about? Ask...tell me the five questions that you're most concerned about being asked. It may be something simple, it may be something complex, it may be something that you're not aware of, and it may be something opposing counsel is aware of. Going over these likely areas of inquiry with them, things that they're very concerned about will flesh it out, will give them an opportunity with you to work through the answers so they can get truthful and accurate and artful answers, and make them much more comfortable.

And obviously, they need to be able to express each and every opinion they have in the case and defend each and every opinion. As Jim mentioned, we recommend the bullet point fashion, four or five bullet points for each opinion. They need to simplify the case and we recommend that each issue be listed in a large index card, the issue is on top, the bullet points answering the issue are on the card. We have found that you take the largest case possible, we've worked on hundreds of cases involving hundreds of millions of dollars in patents and other cases, and never had a case that had more than 10 of these index cards. If you can take thousands and thousands of pages of documents that they're concerned about, and boil it down to 10 index cards, with each one have 4 or 5 bullet points, they very much appreciate it. And they know what to study, they will study and they will definitely do much better. Jim?

James: Thanks, Steve. We're running a little bit short on time. But one of the things that you should do with your expert is to demonstrate to them some of the tactics that they're gonna face in the deposition. And I wanna focus on some of those that we have on our slide here. First of all, number five. This is a tricky one, a hypothetical question. This is a tricky one for a lot of expert witnesses and it's something I think you can get great bang for the buck by preparing your expert witness for this.

So often at a deposition the lawyer will ask your expert, "Well, what if such and such and such, how would that change your opinion?" And what the expert is really being asked to do is come up with a new opinion on the fly. And which could be a very dangerous thing because the expert would not be, in many cases, carefully considering their response. So you wanna explain to the expert that there's a couple of different ways to deal with that question. One way you could say, "Listen, I don't have enough information on the hypothetical that you asked me. To answer that question, I would need to know X, Y and Z." And if the lawyer comes back with X, Y, and Z, the answer from the expert witness could be, "Well I certainly would consider that. I would need some time to think about it."

"Well I'll give you a minute." "No, I mean I would need to study, I would need to go back, I would need to reflect. It took me three or four months to come up with my first opinion in this case, I can't give you an opinion on the fly." And that's one potential way to handle hypothetical questions where an expert really can't come up with something on the fly. Another thing that Steve and I see a lot of problems with is this whole idea of magic words. And this gets really dangerous where experts and lawyers are collaboratively drafting reports and declarations and things like that. So an expert witness will say in their report that their opinions are to a reasonable degree of accounting certainty, or a reasonable degree of engineering certainty. So you ask them, "What does that mean?" And they don't know. They have no idea what it means.

And if you ask them kind off the record, "Well why do you use that?" "Well the lawyer told me to." "Why do you use it?" "Well I saw it somebody else's report when I first started doing this 15 years ago, and everybody uses it. So I did." And they don't know what it is. So you need to go through any of the legalies, any of the legal magic words that could be used in the case, that the expert did use in the case, in his report, and make sure that the expert understands the true meaning of those words, they understand what they're talking about. Because testifying under oath that you believe something and you don't know what the word means is really not good.

Wearing your expert down in repetitive questioning. Obviously in federal court, you're talking seven hours in one day, and you wanna explain that to the expert. You can't just go more than one day or seven hours, which is helpful. But you really wanna...a lot of experts, which is irrational to Steve and myself, get really frustrated when the lawyer asks the same questions again and again and again and again. We always explain to the experts, "Listen, you're getting paid by the hour. If they wanna ask you the same question over and over and over again, what do you do?" You know, silence, silence, silence. And then they'll ask us in an inquisitive way, "Give them the same answer over and over again?" "Very good."

And you need to explain that to them that that's perfectly appropriate and this is a battle of wills. And in a battle of wills, you just don't wanna be out battled. I mean the truth is not going to change if you keep giving the same answer to the same question, it's appropriate for a truthful answer.

Wearing your expert down, that can also be a problem. We talked about that earlier. And I think one of the ways to prevent that obviously is to schedule the deposition at a time when your expert witness is likely to be fresh. Another thing, if you could find out really what pushes your expert's button and what's gonna freak them out, if your expert got their degree online. You ask them, "How many real colleges did you apply to?" Anything you think might freak them out, you wanna go over that with them at the deposition so that they're prepared for it.

Because you don't want them...once somebody gets emotional, once somebody gets their button pushed and allows their buttons to be pushed, they're gonna be done. They're gonna be completely discombobulated and you're gonna lose, which is not good. So major areas of concern to review with your expert, very quickly because I know we're running short on time, we mentioned these things before but it's critical. What are they and are they not an expert on? And some experts we've prepared, you know, no exaggeration, we've spent half a day to a day working with them so that they understood, could articulate what they are and are not an expert on. It sounds stupid, but it's really important.

What they will and will not be offering opinions on, we talked about that. The basis of the opinions to be offered. They should have those available and prepared in a bullet point fashion. The assumption that the expert is basing the opinions on, we talked about that. The exact wording of the opinions. And one of the things that expert witnesses do in our opinion that can get dicey, is expert witnesses over testify. In order to kind of prove your case, you need to say X. And they'll go overboard and they'll take an extreme position. And you wanna be careful with that at a deposition that the expert doesn't overstate their opinions. Because if they overstate the opinion, it's gonna be much harder obviously to defend that opinion.

Understanding legalies, we talked about that. And again, what is the expert concerned about? Steven?

Steven: Okay. We are short on time, so I'll just go over a few other areas. And Matt, when you have to stop, please let me know. As Jim said, you want to go over the trick them difficult questions. And I think in our textbook, we have a list of several hundred of them, and I think we break it down by methodology, fee, etc., etc., right? I think they need to be stressed out in each area of where your concerned, and they need to be able to answer these questions. When did you form your opinion? Is your opinion subjective? How would you comment upon the opposing experts? Do you keep current with the literature and so forth?

And we have some examples. We had an expert who was testifying in a video deposition and she was smirking all the time, and we had to deal with that. I had an expert on a large patent case the other day that I noticed on the previous deposition when I viewed his video, he's wearing a $35,000 Rolex. Well probably not a good idea. We have to deal with experts who may or may not be as qualified as the opposing expert. How are they gonna deal with that? What are they going to say? We talked about the guestimate. I had an expert who was a specialist in evidence-based medicine. When asked, "What is evidence-based medicine?" he was unable to articulate that, which sounds ridiculous but is absolutely true.

Medical malpractice case, expert was poorly prepared, if he was prepared at all. When asked, "What standard of care meant?" in a medical malpractice case, the physician was unable to state what standard of care was. He actually asked the attorney what he meant by that. Forty pages later of the transcript, yelling and screaming, eventually more or less told him what the standard of care was. The deposition was a disaster. And finding out about your expert and how much he's been paid in terms of whether or not he has an ongoing relationship with one client. And the other, we had one expert who had been paid $6 million by one client over the course of four years.

So there's a lot to do with preparing an expert witness. In my view and probably in Jim's view as well, I have never met an expert that we have prepared that hadn't got substantially better. They've gotten better in an hour, they've gotten better in four hours, and sometimes we've spent as much as two days preparing these experts. Each and every expert has substantially improved right in front of our eyes, and actually, they smile at the end. And usually what they do is they send us a note after the deposition thanking us very much and actually telling us the preparation was more difficult than the deposition, and they were extremely well prepared.

Matt: Okay, thank you guys. We have a couple questions here that I'd like to get to before we hit the 3:00 hour. We've got a couple questions that refer to the index cards. And John asked, "Are you saying that the expert should actually write down answers on an index card and take them into and reference them 'during' the deposition?"

Steven: Okay. I can handle that. No, what we're saying is this, the expert has 10,000 pages or 5,000 pages of documents to deal with. What we recommend and what we do is break down the case to five to 10 issues. Each issue has an index card and each issue has five bullet points. The expert, instead of trying to memorize 5,000 pages of documents, actually tries to memorize the 5 or 10 index cards. So no, we do not recommend that they bring those index cards to the deposition. Those are the things they would work on so when that question comes up, from their memory, they will go over their bullet points. They will trigger off their answer, and they will be able to answer it in an articulate short bullet point fashion, as opposed to starting to talk, not knowing what they're gonna say. And give, what we call, a blah, blah, blah answer where they keep talking and talking and talking and talking until they run out of breath. At the end, their answer was not articulate, it did not hit all the points they wanted, and in actuality, the fact finder or whoever is listening to the deposition, really doesn't know what they tried to say.

[crosstalk 00:55:26]

Matt: Go ahead, Jim, sorry.

Jim: The other thing I would say is that ideally, this doesn't happen as often as you would like. The points that you would want covered in the index cards, your opinions, the basis for the opinions or why you disagree with the other expert, why you're qualified, would be very well articulated in the report. A lot of times however, whoever is reviewing the report and the report's really not that good. So this information ideally would all be in the report and ready to go, but most of the reports you're gonna see aren't gonna be that good, unfortunately.

Matt: Okay, we have a question here from Russell who asked, "How do I deal with arrogance that is a problem with an expert?" He has dealt with an expert who's a treating doctor who has been deposed many times and is known to be very arrogant. How do you politely ask the expert to lose his or her arrogance?

Steven: Yeah, some areas of expertise kind of lend themselves to arrogance, and some people have accused physicians and other experts of being arrogant. In my view, I think the best way to deal with that is to take the doctor down a notch immediately by showing him that he doesn't know everything. And I would ask him four or five questions he can't answer. And then I would talk to him about the fact that there's two or three parts to a deposition, what you're saying, and the second part is how you're saying it. So he may have the complete right answer, but if how he says his answer is arrogant, condescending and really is not well received, then whatever he's saying is of lesser importance.

Especially if it's on a video tape, I would drive home to the witness that how he says what he's saying is just as important as what he's saying. And a lot of experts don't like to hear that, they find it disconcerting after 30 years of study, and they think it's game playing by lawyers that they're wordsmithing and so on and so forth. And the short answer to that is, they're right. It is wordsmithing. But if you say that you have a reasonable degree of certainty, your opinion's accepted, and if you say it might be so, your opinion is legally insignificant. So how you say it is just as important as what you're saying. They must understand that concept and if they don't, and they continue to be arrogant, whatever they say, their message is gonna be lost on the people listening to it.

Matt: Okay, great. We have a question here from Theodore who asks, "In a recent plaintiff case, opposing expert's report revealed erroneous facts. He had not read any depos. I wanted to surprise him at trial, but co-counsel insisted on deposing him on those points, giving him an opportunity to cure his report." Theodore asks, "What do I do?"

Steven: Well first of all, 97% of civil cases are settled before the trial, so I guess this would be the exception. I would agree with Theodore that if he knew the case was going to trial, and if the opposing expert had a major problem, I'm not sure I'd want to let him cure his defect. On the other hand, if he has to go back and redo his report and redact it and make all kinds of corrections to it, that's going to be able to be used in trial as well. So you had your report and then you had to go back and make all kinds of corrections and additions and modifications to correct it. So either way, I think the opposing expert is gonna have problems. But if in fact they had some dynamite material that they knew that they could use at trial, I'm not sure I'd bring it out at the deposition unless I thought the case was mostly likely settled. And as a I said, as far as I know, 97% of civil cases are settling. So nowadays, some of the attorneys are not saving this so-called dynamite or good material for the trial since there are so few trials.

Matt: Great, thank you. We are approaching 3:00 hour. So I'd like to wrap things up just very briefly here. First of all, I'd like to thank Steven and James for taking time out of their busy schedule to share some of this information with us. I thought the presentation was great. I'd also like to thank those who took time out of your schedule to spend time in attendance with us. I hope that you are able to take some good points out of this presentation. This presentation was adapted from a book that Steven and James just authored, "How to Prepare Your Expert Witness for Deposition." A copy of this book is available through TASA, and if you'd like a copy of the book, you can contact us here at 800-523-2319 or you can send me an email. You'll be getting an email at 3:30 p.m. thanking you for attending today's program.

Tomorrow morning, I will send out a link to the archived recording of this program. In that email I will include a copy of the PowerPoint presentation that was used during today's program. And our next webinar for legal professionals, "Infinite Management Risks Associated with Food Safety Outbreaks" will take place on February 13th. I hope to see a lot of you there. And if you have any follow-up questions or comments, please feel free to email me at mhyde@tasanet.com. Otherwise, look for a follow-up email from me this afternoon, and then tomorrow morning, I will send you an email with the archived recording and the PowerPoint presentation. On behalf of all of us here at TASA and James and Steven, thank you for your time and we look forward to seeing you at future events. Thank you.