Expert Witness Deposition: What to Expect and How to Prepare

In depositions, the opposition has the chance to ask your expert about their report, opinions, and methods. It’s the stage where weak cases are often revealed, prompting immediate settlement discussions. Think of it as the opposing counsel’s fishing expedition—they’ll try to hook your expert on topics that can later be used to undermine their courtroom testimony or knock their credentials and credibility down a few rungs. So, let’s talk about how preparing expert witnesses for deposition is crucial for ensuring your expert is ready to handle any opposing bait that’s cast their way.

What are Depositions?

A deposition is testimony given outside of a courtroom. This sworn testimony occurs during the discovery process, where the parties gather information on the witnesses and evidence planned for presentation at trial. The witnesses, attorneys for all parties, and a qualified person to administer oaths will typically be present at depositions. Depositions are an oral format and as the deponent, you’ll give spoken answers to questions asked by the opposition. Though all parties at the deposition may ask questions, expect the lion’s share of questions to come from the opposing counsel.

Most depositions are electronically recorded—don’t expect to see a stenographer recording your deposition. Of course, the COVID-19 pandemic has also popularized the use of recorded video depositions. Also, on occasion, parties will conduct a deposition by written questions. This is where the parties submit questions in advance, and the expert witness answers only those questions at the deposition. It can be less expensive, as counsel does not have to attend since the questions are known beforehand. However, litigants lose the ability to ask follow-up or ad hoc questions that occur to them in the live deposition.

Deposition Rules & Procedures

Each state has specific rules governing depositions, and most are similar to the Federal Rules of Civil Procedure (FRCP). In federal jurisdictions, FRCP Rule 30 governs oral question depositions, and Rule 31 is for written question depositions.

As an attorney, your job is to prepare your expert for what they need to know for the state where your case is taking place. However, it’s also beneficial for your expert to have a high-level understanding of a few key aspects of FRCP related to depositions.

Federal Rules to Know

FRCP 26(a)(2)(A) sets the stage for expert witness depositions. This rule requires a party to disclose the identity of any expert witnesses it may use to present evidence at trial. Part (B) of this rule mandates that the expert’s report accompany the witness disclosure and outlines the report content requirements.

FRCP 26(b)(4)(A) establishes that experts who may testify can be deposed. Depositions can happen only after an expert report is provided. If your expert is retained for services but is not expected to be called as a witness, FRCP(b)(4)(D) says they cannot be deposed.

Don’t Let Your Expert Get Caught in These Common Pitfalls

Ensure your expert puts their best foot forward in the deposition with these quick tips.

Outdated or Inaccurate CV

Opposing counsel will research your expert’s background and credentials on social media, employer, publication, and industry websites. Before you disclose that your expert will testify, ensure that all public details about their certifications, degrees, experience, and employment history are accurate and current. This way, you can avoid hits to their credibility.

No Volunteering Information

One of the worst mistakes an expert can make during a deposition is volunteering more information than needed to answer the question asked. If your expert feels the need to expand on a concept, advise them to stop. This extra information can lead to trouble and give opposing counsel more ideas for undermining their testimony.

Read and Sign the Deposition Transcript

It’s common practice for opposing counsel to ask a deponent to waive the right to read and sign the deposition transcript. Put simply: don’t allow your expert to do it. It’s important for your expert to carefully review the transcript to make sure it’s accurate. This is a right they should not give up.

Everybody Needs a Break

Experts may feel they must carry on and get the deposition over as quickly as possible, but remind them that they can ask for a break or recess at any time. A short break can help them collect their thoughts and relax during an intense deposition.

Don’t Expect Softballs

Even if the attorney deposing your expert isn’t an expert in your expert’s field, remind your expert not to expect softball questions. Opposing counsel will likely consult with their own expert to help develop detailed deposition questions.

Prep with Your Expert Witness

Perhaps the greatest tool for helping your expert succeed during depositions is solid preparation time with you. Deposition training for witnesses ensures they are ready for the toughest questions and potential traps opposing counsel might set. Schedule time to thoroughly discuss their background, review potential questions, and prepare responses. Encourage them to tell you everything—even aspects they wish they hadn’t written or said as a professional. This will help you strategize and avoid any bombshells opposing counsel might throw their way.

You cannot coach your expert on what to say, but you can help them understand the types of questions they might face so they can thoughtfully consider their answers. Your job is to help your expert witness perform well on the stand; their role is to tell the truth. Reviewing the expert’s report with them will also ensure they have command of the case facts.

Opposing counsel will use your expert’s report as a guide for their deposition questions. Make sure your expert is prepared to discuss the facts, assumptions, and methodology they used to arrive at their opinions. It’s also helpful to have them ready to list their sources—publications and industry literature that informed their analysis.

Armed with these tips and a thorough preparation process, your expert will be well-positioned for a successful deposition.

Background Information

Doing some reconnaissance (with Expert Radar) on the expert and cases in which the expert has been deposed/testified:

• Note the similarity in causes of action and which side he testified for
• This is especially important if those prior testimonies in any way form the basis of questions that may be asked by opposing counsel
• Also important to note any biases and prepare for any questions about/relating to that bias.

If possible, also communicate with the attorney for whom the expert was a witness in a prior case:

• Ask about how the expert communicates
• Probe about expert’s personality

In the case of experts who are subject to occupational regulations, make sure they don’t have anything that could ruin their credibility for example:

• Malpractice (for physicians)
• Complaints to Review Boards
• Citations
• Disciplinary action
• Professional sanctions

Try to make sure that the expert interview is distinct from the deposition preparation. Separating the two events:

• Allows you time to make an assessment about the expert
• Do any necessary follow-up before preparing for the deposition

Knowing What Your Expert Knows

The reason that an expert is retained is because, presumably, they possess some high level of technical or specialized knowledge about a particular subject. This is what makes their testimony of consequence to the claim or claims in a litigation. More importantly, they are retained for the purpose of aiding the trier of fact in coming to a conclusion on the merits of a case. Accordingly, there are several key facts you should know about your expert before a deposition.

• Expert’s educational background
• Grades in school
• Obtain CV and get copies
• Any certifications
• Any distinguished honors or awards
• Memberships/ affiliations in all organizations and interest groups
• Major projects in which the expert has participated
• Any requirements specific to his field
• All instances where the expert gained any practical experience
• Additional training courses
• Also, ask the expert to disclose any disciplinary history
• Investigate any gaps in the expert’s CV
• How many times has the expert been deposed or testified
• How much experience does the expert have in federal court vs. state court

Bring the Expert on Board

• Integrate the expert into the theme of your case
• If not directly involved with your client (like a doctor or psych), at least make the client and expert aware of each other
• Familiarize your witness with the members of the opposing party, especially those attorneys who will be cross-examining him
• Ease the expert’s nerves
  • Even the most experienced experts, who have testified numerous times, can be nervous or anxious, that’s just human nature
  • Remember to build a good rapport with the expert
  • Alleviate their tensions about the deposition, aside from just the substance of their testimony
  • Reassure them that you are there to assist them
• Review questions and answers of any interrogatories sent to the expert prior to the deposition
• In addition to using your expert to prepare for the opposing expert’s deposition, also use your witness to help identify questions about facts for non-expert depositions as well.
• The success and credibility of your expert’s testimony depends on the expert’s ability to deal with contrary factual arguments instead of rebutting theories
• Evaluate damages settlements

Deposition Materials

A key part of the preparation phase is putting together a set of all the relevant materials that may be required for the deposition. Hence, careful organization of these materials could be the difference between a strong and weak deposition testimony.

Documents Exchanged During Deposition

• Key documents typically include the expert’s report, supporting materials, and CV.
• Though often exchanged electronically, deposing attorneys should provide paper copies during the deposition.
• Advising experts to bring their own paper copies can help if they struggle with recalling details.
• Experts should thoroughly review and be familiar with these documents before the deposition.
• Prepare a copy for opposing counsel

Documents the Expert Relied Upon When Forming an Opinion

• Supporting materials are often attached to the expert’s report and shared during discovery.
• Bringing large texts (e.g., textbooks) to the deposition may be impractical, but annotated reports can help experts recall key points.
• Attorneys should review any annotations beforehand to address potential issues and ensure nothing damaging is included.
• Any relevant materials previously disclosed by opposing counsel, such as a copy of the opposing expert’s report.

Documents Related to the Expert’s Opinion or Discussion

• Includes notes, timelines, or outlines prepared by the expert before drafting the report.
• All exhibits, including graphs, charts, pictures, official reports and publications.
• Whether to bring these materials depends on the attorney’s discretion.
• Attorneys should review these items to assess their impact on the case and ensure the expert is well-prepared to navigate them during the deposition.

Ensure all materials, including key documents, are organized in a binder with tabs and arranged in chronological order for easy access during the deposition.

Practice Makes Perfect Depositions

An essential part of the preparation process is practicing questions and answers with the expert in advance of the deposition. You should also go over tough questions that opposing counsel will likely ask. This involves anticipating difficult questions by combing through vulnerable spots in the expert’s testimony; perhaps a certain type of methodology is often the subject of debate among professionals. By anticipating these sorts of questions, you can help better prepare your witness with the best possible answers.

• Practice direct examination questions
• Practice anticipated cross-examination questions
• Remember cross-exam questions may not necessarily be on the subject of expertise; they could be questions designed to impeach the witness and damage his credibility
• Practice your objections
• Practice in a realistic setting, with the exhibit binders that will be used during the deposition. Remember, if an exhibit is incorrectly labeled and not noted or preserved on the record, these are grounds for exclusion.

Know Your Objections

It is important to remember that the rules governing objections made during a deposition are different than those at trial. Objections made during depositions must follow the requirements of FRCP Rule 30(c)(2) and provisions of Rule 32. It is crucial to remember that although an objection may be made at any time and is noted for the record, the deposition still proceeds.

• Only object if you will gain from making the objection, frivolous objections can actually harm you if questioning attorney can cure the objection.
• The best way to do this is to make a judgment about the kind of answer the expert may give- if you are unsure or the answer could be unfavorable, it’s safer to make the objection
• If a question is curable and you fail to make the objection for the record, the objection is waived forever (FRCP Rule 32(d)(3)(B).
• Check FRCP Rule 30(c)(2) for permissible objections
• Check FRCP Rule 32 for admissibility of deposition testimony at trial
• Remind your expert that even though you may object as defending counsel, the witness still has to answer the question, unless it involves an issue of privilege or embarrassment.

The only time a deponent may be instructed by counsel not to answer deposition questions is when it's necessary to:

• Preserve a privilege (like attorney-client or work-product)
• To enforce a limitation ordered by the court, or
• To present a motion under FRCP Rule 30(d)(3).

Remember, there are rules in place that you can use to ensure that the deposition of your expert is fair. Check FRCP Rule 30(d)(3)(A) for the grounds on which the deponent or a party may move to terminate or limit the testimony at any time.

Deposition Arrangements

When it is finally time for the expert to give his deposition, there are a few housekeeping matters to keep in mind, both for etiquette and efficiency.

• Confirm the venue of the deposition with opposing counsel
• Remember any stipulations between the parties
• Make sure this is a proper and convenient enough venue for your expert
• Clearly communicate the times and immediately update any changes
• Be wary of government holidays
• If your expert is traveling from out of town, make arrangements for his stay

Depositions are an essential part of the trial process, especially those of expert witnesses. Portions or entireties of depositions can have huge impacts on the outcomes of cases and if counselors are not careful, failure to adhere to the rules governing depositions of expert witnesses can have regrettable consequences. Understandably, expert depositions can be very stressful for both the attorney and the deponent. In addition to the criteria highlighted in this general roadmap, it is extremely important to consult the Federal Rules of Civil Procedure for any other requirements and deadlines the court will prescribe. Consequently, even the most experienced attorneys can use this checklist at a glance to offer some quick reminders and ensure that the expert’s depositions run as smoothly as possible and add maximum value to your case.