Essential Advice for Expert Witnesses in Depositions and Trials

By Noah Bolmer

Whether in deposition, at an administrative hearing, or in front of a jury, testifying expert witnesses find themselves the target of intense questioning. Know what to expect, and how to respond with these tips from experienced experts. 

Answer What is Asked 

Answering the question asked may sound simple, but it is human nature to provide additional information and context. Fortunately, this is a trainable skill; expert Robert Sherwood recommends practice to avoid this common pitfall:  

I would say to practice listening [. . .] You do work on listening to the specifics of the classic question: “Do you know what time it is?” A good expert says, “Yes.” The amateur says, “4:30.” They did not answer the question. So that is the classic example of listening; I have learned to listen carefully and only answer the question. Do not provide information beyond question. If the lawyer wants you to elaborate, he will ask you another question. 

It is appropriate to qualify an answer to a tricky question, but only after answering the question asked. Expert Ravi Iyer advises answering questions simply before expanding, noting, “First, the rule is to answer immediately with a yes or no. [If] this question is debatable, [. . .] look at the judge and say, ‘I would like to qualify my answer, please.’” Doing so can preempt judicial reprimands; Mr. Iyer continues, “If you start giving a long lecture, the judge will interrupt you and say, ‘Sir, you have not answered his question. Please do that first.’”  

Take Your Time in Answering 

In the moment, expert witnesses may be tempted to quickly respond to questions without taking a moment to consider what was asked. Professor Marom Bikson advises close listening and consideration:  

It is not about rattling off responses as quickly as possible. It is listening to the question carefully, asking to see the materials that you need to see. They were asking about a ten-page document that had not been seen in a decade. I would ask to see the document and it is going to take me at least fifteen minutes to read it. As an expert, you must not feel bad [. . .] Even [if] everyone is staring at you, you can take the time you need and not rush into something and give an answer.  

While quick responses may connote preparedness, Professor Daniel Spulber notes that this can be to the expert’s detriment. 

[I]t is the role of counsel to find out what you want to say, but also to throw you off your game [. . .] My advice here is this: stop, look, and listen. Stop talking. Look at counsel. Listen to what they are saying if they are asking you a question. Maybe take a break and formulate an answer rather than trying to talk, interrupt them, or give an immediate response. [. . .] I think the better advice is to pause when you formulate an answer. It is good to answer quickly, but not too soon, because you have to have time to give a coherent response and not just go on impulse. 

Effective Communication with the Jury 

In jury trials, experts should strive to answer questions clearly, and in a manner that laypersons will understand. Professor John Abraham recommends analogizing. He states, “I would say the number one thing to think about concerning a jury trial is articulating clear answers that the jury is going to understand and resonate with. Think about analogies that strike home. Make juries think about how these things work in their life. Any analogies that you can use are great.”

A story-based approach is an effective means to pull in juries. Professor Gil Fried recommends using past cases to boost the current one: 

[S]ometimes the best way to approach [testimony] is to ask the expert to tell a story. [. . .] if you give lots of numbers, lots of statistics [. . .] you’re not going to be able to have that connection [with the jury]. An expert witness can say, “Hey, look this is very similar to another case I handled [. . .]” and all of a sudden, they can put it together. And then, if a lawyer follows up, “And so what was the result of that case that you just mentioned?” [You reply], “Oh well, we got a defense verdict on that” or “Oh, we got a $13 million verdict on that.” Whatever it might be. That, I think, solidifies it for the jurors that [the expert] is talking about something that really is legitimate and they backed it up with real facts, real people, real injuries, whatever it might be. And I think that resonates so much.  

Watch Out for How and Why

While most signal questions with straightforward answers, Dr. Michael A. Einhorn notes that a couple can be tricky. Listen for trigger words and answer accordingly. 

We have who, what, where, when, how, and why. The first words, who, what, where, and when are simple questions that require simple answers. The words how and why are critical. Each involves more than an easy answer. Just keep the response simple, answer the question, be consistent with your report, and don’t say anything more. Let them follow up with another question. When the other side asks you at the end if there’s anything you want to add, the invariable answer is “nothing”, because I know that anything I say can lead to trouble. If you keep the answers narrow, your attorneys can come again at the end and try to straighten some things out on cross-examination. Explain, but don’t educate the opposing counsel.  

Avoid Digging Your Heels In 

There is a push-and-pull with every case, and it is best practice to concede points where necessary. Expert Kevin Quinley recommends acknowledging and moving on.  

I think another idea is to yield ground in the deposition, where every case has strong and weak points, and pick your battles with care. If there are issues where the facts point in one direction, you have to yield and concede. Do not try to defend the indefensible. For example, I am typically called in on issues involving insurance claim handling [. . .] there is no such thing as a perfect claim file. There may be things that the insurance adjuster did not do, and if it is clear that they did not do them and maybe should have, then acknowledge that. It does not necessarily mean it is bad faith. That is a legal standard, and I am not an attorney, but it yields ground. Pick your battles. 

Conceding points during questioning is not only a smart tactic, but an ethical obligation. Dr. Elliot Fishman recalls, “I mean, gosh, twenty percent of the time in a deposition, I will concede the other side is right in every case. Perfect. Sure. Why not? An expert is not advocating his client’s position. This is important for new experts and maybe new attorneys to understand.”

Testimony is an exciting and challenging aspect of expert witnessing. Listen carefully, answer patiently, and communicate effectively, and you will navigate questioning with equanimity.  

If this sounds interesting to you and you want to explore becoming an expert witness, consider signing up with Round Table Group. For 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Contact us at 202-908-4500 for more information or apply to join our network!