Surviving Depositions: A Guide for Expert Witnesses

By Noah Bolmer

While trials are the legal “main event”, expert witnesses will spend more time in depositions over the course of their career. These under-oath question and answer sessions can be long, grueling affairs, but with these strategies from experienced experts and attorneys, you will be well-equipped to go into depositions with confidence. 

Depositions vs. Trials 

As part of the discovery process, depositions are a fact-finding process whereby you will be interviewed   by opposing counsel, outside of the courtroom. In some ways, the process is similar to a trial, as depositions include direct- and cross-examination, and redirects. However, unlike trials, the questioning may be quite broad, and there is no judge present. The session is transcribed, and may be used by both sides, should the case go to trial. 

Securities attorney Richard Leisner notes a common misconception with newer expert witnesses:  

[E]xperts make a mistake in thinking that when the opposing counsel is taking their deposition, it’s at the end; there’s going to be a ruling, and your side is going to win. When I say it out loud, you’re laughing, but the natural tendency is to think, “I want to win this deposition.” The deposition is an opportunity for the party calling this opposition. Usually, the other guys find out whether [the expert has] weaknesses, problems, or you lose your temper—that sort of stuff. How good are you at responding to questions? That’s a different undertaking from the trial.  

Depositions serve as training grounds for experts, according to attorney and author Stephen Embry: 

[E]xperts are not born, they get there through experience—which is a problem these days, because we do not try as many cases as we did when I was a young lawyer. Experts do not have that ability to get into the courtroom, which means you are training off depositions and reports more than you are training to be able to see how this will play out in the courtroom. As an expert, you can be deposed and give answers. How is that going to sound in the courtroom? How is it going to play out in front of a jury? That is hard to do. I sometimes will try to do a mock deposition more than a mock cross-examination or mock direct analysis. 

Get On the Same Page 

It is crucial that you and the engaging attorney are completely in sync prior to deposition. Any misunderstandings can manifest at the worst possible time, and there may not be a remedy. Forensic account expert, David Harkavy illustrates this with one of his early cases: 

There is a common saying among damages experts, and that is “damages flow from the legal claims at issue in a case”, and that is true, of course. I recommend to new, inexperienced damages experts to have a conversation with counsel early on about the remedies you are going to consider for the preparation of your expert report, and which remedies fall under which claims.  

I recall the day before I was supposed to testify for my second deposition, counsel came into the conference room, sat down, and said, “We have a problem [. . .] You calculated an unjust enrichment amount and we do not have an unjust enrichment claim in the case.” I said, “OK.” And he said, “Well, we need you to say at your deposition that we will put in an unjust enrichment claim so that your unjust enrichment calculation can stay in the case.” I am about to testify in deposition, I was anxious, and I am thinking, “We do not have a legal claim for the remedy that I put forward because it was a breach of contract case.” At the time, you could not put forward an unjust enrichment calculation under a breach of contract. So, my tip for both counsel and the damages expert is to have that conversation early. If there is one claim or count or multiple claims, make sure that the damages and remedies that the expert is going to put forward in his or her expert report are tied to the legal claims of the case. 

In situations with teams of experts, this becomes even more critical, as there are more potential points of failure. Expert Craig Schlumbohm recalls:  

We were involved in a case where we had multiple experts from multiple companies, and it was a linchpin of the case. There was an expert that spoke to one scientific topic. In his deposition—and this was an arbitration case—an arbitration expert said some things that we had not heard from him before [. . .] I was dealing with some of the architectural issues and the cost of repair, and suddenly my foundation fell apart because of the way case the case went on from there. We had different experts on structure, windows, and roofs—it shot the whole thing out of the water because we had an expert that, for whatever reason, went a different direction. 

Scheduling Depositions 

When there is latitude to help direct the schedule, choose a timeline that works for you. Multi-day depositions can be particularly onerous, and some experts prefer fewer, albeit longer, days over a large number of shorter ones. Cybersecurity expert Dr. Eric Cole explains: 

[W]e recently had a case where I did not only infringement but also validity and apportionment. The other side was saying that because I technically did the role of three people, they wanted three days of depos because you get seven hours in a federal court, so they wanted three days in a row. The attorneys I was working with basically negotiated that instead of three days of seven hours, we could do one day of eleven hours. [. . .] Neither one sounded appealing to me, so I reached out to some of my colleagues and asked them their opinion. They reminded me, “Eric, you’ve done multiple day depos, we’ve done it. It’s very, very exhausting. Once you get into it, you get going. The energy flows.” They convinced me to do the one day for eleven hours instead of the three days. It ended up after you got to about hour eight, the last couple of hours just went by quickly. I stayed in the zone.  

Refresh Your Memory 

Legal actions do not always have rigid timelines in the discovery phase, and there are occasions when you may be deposed months, or even years after an engagement begins. Fire code expert John Catlett recommends frequent memory jogging:  

You want to make sure that you have the week prior—that you’ve gone back through [case materials] because a lot of times these cases get dragged out, and from the point you did your initial report [. . .] your depositions could be 18 months later. And so it’s very important that you even sometimes—even without anything [in particular] going on with the case—pull [the case material] out, look through it again, refresh your memory, because the more you do that (just like with anything) is how we learn. If you go into a case and say, “if you look on page five of my [report]” without going to your [report], [. . .] they’re going to look and go, “Holy crud, this guy’s prepared.” 

Preparation 

Getting ready for a deposition is a process distinct from trial preparation, but experts should always prime themselves for trial. Patent attorney Stanley Gibson drives this point home:  

Certainly, by the time I am involved, I expect the case to go to trial and I prepare the experts as if it is going to trial. I do not want an expert giving a deposition and not thinking it’s going to trial—even if they may have the experience where they testified 50 times and they have only gone to trial twice—I will tell them that most of my cases go to trial, and I expect this is going to go to trial. So they need to get prepared and be in the right mindset for that. I think it’s dangerous not to do that, and I have found throughout my career, that the more prepared you are for trial [. . .] the more likely you are going to get a good settlement as opposed to trying to settle because you are worried about your case. Being prepared for trial and having your experts prepared for trial, I think, sends the right message to the other side, and will promote a better settlement. 

Insurance expert Kevin Quinley likens depositions to exams, recommending: 

Prepare for it like it is the most important exam you have ever taken. Like defending a thesis or dissertation at a grad school level, because that is what it is. It is not an open-book exam. It is not a written exam. It is an oral exam. So, overprepare both the facts of the case and the substantive analytical issues of the case. Show command of the facts and the basis for your opinions. I do not think you can prepare too much, and that will pay dividends. It may take extra time—but that will pay dividends because most cases do not go to trial. Maybe 1% of all civil cases go to trial, so usually, the deposition is the trial. If you have a strong deposition performance, there may be less of a need for a trial because the case can resolve through summary judgment or settlement. 

Preparation can vary in time and manner, depending on the specifics of the case, according to biomedical engineering professor Marom Bikson:  

If I am going to be deposed, my experience has been that the lawyers will work to prepare you. The amount of preparation may depend on the stakes of the matter, so it may be [where] one day they walk you through some questions, or [it could be] regular preparation. They trust in your expertise and your technical domain, but they want to make sure that you understand that the process you are about to be engaged in can be adversarial. That may be a style that we are not—particularly as scientists or technologists—used to. Frankly, I think it makes us a little uncomfortable sometimes to be engaged with someone who—nothing against them—thrusts us into an adversarial role with them. They are thinking as an adversary, about what I should say. The preparation for that is to speak clearly and not speak beyond your report to avoid being led in a direction that you cannot defend later. 

Demeanor 

While less formal than trials, the manner in which you present yourself at deposition is important. Kevin Quinley advises: “Make a good appearance. That means your demeanor, your attire, and your interactions, not only with opposing counsel but with the court reporter. More and more are on Zoom, but in the olden days—and maybe in the future if we revert back to in-person depositions—greet and meet the videographer and the court reporter. Everything you do is on stage and noticed there.” 

Answer Questions Truthfully 

You can’t become wedded to everything good for your side or bad for the other side because the lawyers are so good at asking modifications to questions that you’ll find yourself in a ditch someplace, and you won’t be able to figure out how you got there. -Richard Leisner 

While attorneys have a duty to the end client, the expert witness’ duty is to the unvarnished truth. Depositions are under oath, and all questions must be answered. Healthcare compliance expert Jean Acevedo puts it simply, “Independence and objectivity have got to be paramount.”  

Even with the most thorough preparation, there will inevitably be questions for which you do not have an answer. When this happens, attorney Stephen Embry advises, “[I]f you admit something in a deposition, admit it. Do not fight it. Do not fight something not worth fighting. By fighting, you lose your credibility.” Economics expert Dr. Elliot Fishman concurs:  

If I do not know the answer, I will say I do not know. That is perfectly acceptable in a deposition [. . .] That is also what unsettles the other side. When the expert is not trying to know everything or pretends to know everything—I mean, gosh, 20% 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. We have an ethical obligation to be objective and put an engagement letter in my retainer letter so I may obtain findings that are helpful to your client, neutral to your client, and, or even hurtful to your client. The expert is objective, and his ultimate responsibility is to the court, not to their client. 

Being objective and truthful includes the report which you may rely on during depositions. Imaging forensics expert George Reis recalls his first civil engagement: 

My first civil case was a brutal 7-hour deposition. I went home at the end of the day and told my wife I felt like I had been beaten up. She said, “Maybe you should be a boxer.” In that deposition, I had no prep from the attorney. The first half of the deposition went swimmingly. Everything was great. After lunch, the second half focused on one thing: what I wrote in the report. I did not have enough knowledge and should not have written in there. That was a great lesson to learn on a first deposition. Do not put anything in your report that you do not know and cannot back up. 

Control the Pacing 

Computer science expert Prof. Joseph LaViola avoids confusion by taking a moment to slow things down:  

The key with any deposition—and any lawyer will tell you this is number one—you can take as long as you want to answer the question, which is important because you do not have to answer the question until you feel confident in providing a good answer. You have your report in front of you and that’s your bible, if you will. That’s your guidebook and if you stick to your report, there is nothing that counsel can do. It’s just that sometimes it’s hard to stick to that report. One of the things that you do not want to do, is get into a back-and-forth with the opposing counsel which could lead you to start saying things that you should not say. 

Economics expert Prof. Daniel Spulber agrees, noting the importance of experience:  

The frank answer is every time because, particularly in deposition and hearings, it is the role of counsel to find out what you want to say, but also to throw you off your game. I tend not to get thrown by that. I am calm with you today, and I am also calm if people are pushing me and trying to throw me off. I am used to it, and it does not affect me. 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. 

Levity 

Some experts will inject a small measure of humor during depositions, where appropriate. Psychologist Dr. Alice Berkowitz does so with care:  

I said yes. If you do not get thrown off and you know what they are doing, you could joke about it. Recently, I was deposed for a case with USC. It was a 7-hour deposition, and the case is going to trial next week. The attorney for USC was funny. She kept asking me every question on the MPI-2. She did not know what they meant, and I looked at her and said, “Are you going to go through every scale on the MPI-2 when I did many other tests because, if you are, we are going to be here for 10 hours.” It made everyone laugh. She backed off a little, and the attorneys that hired me thought that was hysterical. It just makes light of things, and it helps me relax if I can make humor—not nasty humor—but humor to lighten the mood a little. 

Pitfalls 

The opposing counsel will employ numerous strategies to impeach your credibility, expertise, and conclusions. Your attorney is prepared for this, and will ensure that you are ready to answer confidently and truthfully. Hydrology expert Dr. W. Richard Laton notes:  

Every deposition is somewhat different. Some are more combative. Others are trying to make the other side try to become your friend. As my lawyer pointed out, [the deposing party] is not your friend. [. . .] The other thing that was pointed out to me, is I was always panicking about every single question. They would ask, “What is your name? What do you do for a living?” These are just basic questions that you answer every day. As soon as you hesitate, they gotcha. They said, “just answer the question and move on.” You can answer it simply; there is nothing they can do to change it, but if you start to hesitate, they go, “Oh, we got them.”  

On the importance of style, he continues: “[Another] thing with doing expert witness work is you read many depositions. Not just yours, but others. From that, you get to learn how to phrase things. Some answers are better worded one way or another. It is the same answer, but if you say it one way, it means something different.”

Jurisdictional Quirks 

In some venues, there may not be an expert report to rely on at deposition. In these situations, Securities attorney Richard Leisner recommends:  

What if you’re in a jurisdiction where there is no expert report? You should have an outline that looks like the front part of an expert report where the opinions are listed. It focuses the mind. It may give you a document you can hand to the person taking the deposition, and it puts you in more control of what happens in the deposition than if they start peppering you with questions. The deposition may or may not be used at trial. If it is used, I’m going to be using its totality. It’s going to be used to impeach you. It [will] show that you didn’t know what you were doing. We’re doing a program [. . .] about depositions, and the title is “Depositions are Dangerous to Expert Witnesses.” The questions you’ll get in deposition, you’ll never get in trial.  

He continues, recalling:  

I was deposed by one of the lawyers involved in the Oliver North litigation—and he said, “The Smith Lap case says this.” I said, “You have to submit that case.” The junior lawyer he brought with him didn’t have it. You’re required as a deponent to answer every question, but you don’t have to answer every question in a way that makes the person asking the questions happy. By the way, it’s perfectly okay to say, “I don’t know.” It’s also perfectly okay to say, “Yes, today’s Wednesday and I would agree with you on these facts.”  

With solid preparation, a meeting of the minds with your attorney, and a manageable schedule, you will be well-equipped to handle even long and combative depositions. Always answer truthfully and present yourself professionally for successful and fulfilling engagements.  

For over 30 years, Round Table Group has been connecting litigators with skilled and qualified expert witnesses. If you are interested in being considered for expert witness opportunities, contact us at 202-908-4500 for more information or sign up now!