Law 101 for Experts: Understanding Depositions

By understanding the deposition process, an expert can prepare more effectively, give clearer testimony, and avoid unnecessary complications at later phases of the case.

The Deposition Process

For experts, the deposition process begins well in advance of the deposition itself. The attorney will likely prepare you for the deposition. In preparation, the attorney will focus on issues important to the case and effective communication in the deposition itself.

Depositions are at a specific time and place, usually well in advance. The deposed witness is asked to swear or affirm that the testimony they give during the deposition is true. Then, the parties ask the witness questions. The majority of the questions come from opposing counsel rather than from the lawyer who hired the expert.

The Types of Questions Experts Can Expect to Face

Even expert witnesses who have been cross-examined during a trial may be unprepared for the questions asked in a deposition. Opposing counsel has far more freedom to ask questions in a deposition than in a trial.

The first questions asked during a deposition often feel routine in nature. They include questions:

• About your background and experience as an expert
• Exploring how you got involved in this case
• Dealing with your experience as an expert witness, both in general and in cases specifically similar to the one at issue

Once this foundation is established, expert witnesses typically face questions about their specific opinions and understanding of the case. These include questions about:

• The sources, research, and other facts you consulted in preparation for or while considering issues in this case
• Any testing or examinations performed as part of forming your expert opinion
• The reasoning or other processes you followed in order to form that opinion
• Evidence, publications, processes, and other factors that may weigh against your opinion or lead to a different conclusion

The second set of questions often feels more treacherous in nature. However, it’s vital to prepare for “routine” questions just as carefully as questions about your work as an expert. Both types of questions are important to the case and to your standing as a trustworthy expert on the issues.

The Role of Retaining Counsel

The opposing counsel will ask the bulk of the questions. However, the attorney who retained your services as an expert is not likely to stay silent. Retaining counsel is particularly likely to participate by making one of two moves.

Stipulations

A “stipulation” is, in essence, an agreement to a fact or item at issue. The retaining counsel may say “we’ll stipulate to that.” This means that they won’t make the opposing side prove that fact. Rather, the retaining counsel will treat it as if it is true. Attorneys commonly use stipulations to speed things along when an item is non-controversial. One example is the degrees held by an expert witness or the deadline for sharing a completed expert report.

Objections

There is no judge present during a deposition. As such, objections do not play quite the same role in a deposition that they do at trial. However, retaining counsel may raise an objection in order to preserve that objection on the record for future consideration by a judge if necessary. The expert will typically still be expected to answer a question even if an attorney raises an objection.

It’s also wise to cultivate the habit of pausing after an attorney asks a question and before you answer. This pause gives you time to think about the question itself. It also gives retaining counsel a chance to stipulate or object if necessary.

When Expert Depositions May Occur

In both state and federal courts, court rules govern the timing of nearly every step related to expert witnesses. This includes when the parties must disclose the identities of experts and when the parties exchange expert witness reports. This also includes when expert witnesses may be deposed. In addition, a notice of an expert witness deposition must follow rules for deposition notices generally, as well as any specific rules applying to experts.

Typically, the court will set deadlines for depositions, including expert witness depositions. Knowing those deadlines can help an expert witness plan ahead.

Length of Depositions

Federal and state court rules often limit the length of depositions as well. For example, 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. Utah court rules limit expert witness depositions to “four hours of oral questioning from all parties.”

These rules vary, and courts have the ability to adapt time limits to the needs of the case. As such, it’s important to consult with retaining counsel about the expected length of any particular deposition. Preparing for the maximum time length can help an expert witness avoid impatience or sudden emergencies.

How to Deal With Abusive Questioning

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.

Answer the Question Asked—No More, No Less

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.

You’re Doing a Job, Not a Mission

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.