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So You’re Going To Be An Expert Witness:
How To Prepare For Depositions

By Nelson E. Canter, Esq.

At some point in your career it is possible that you will be asked to serve as an expert witness in the discovery phase of a lawsuit. Because the success or failure of a lawsuit can rest on subtle elements of the expert’s testimony, the experience can be intimidating, grueling and sometimes combative. Whether you are a first-time expert witness or an old hat, the following basic points about depositions and tips will help you be better prepared to serve as a truly expert witness.

Tip #1

Even if you have many years of experience and are the preeminent expert in your field, never underestimate the knowledge of the deposing attorney. A sharp, experienced and prepared deposing attorney will treat the expert’s deposition as the tip of the iceberg. Working from the bottom up, the deposing attorney will have read expert materials (including your own) on the subject matter, reviewed pertinent reports, correspondence and other documents, and will have digested his or her own expert’s theories and anticipated your theories. Additionally, some attorneys may deliberately mispronounce certain “words of art” to lull you into a false sense of superiority. Therefore, tread carefully because the opposing parties’ experts will most certainly read the transcript of your deposition.

Tip #2

Never hold yourself out to be an expert if you are not. This includes related fields that may be tangentially related to yours. For example, if you are an expert in insurance broker operations, do not hold yourself out as an expert in safety and loss-prevention matters if you lack the qualifications and technical background. Your training and experience will be examined carefully, and any shortfalls or exaggerations can have devastating consequences for the party who retained your services. Stick to your area of expertise, and do not hesitate to advise your client to retain additional experts to work in conjunction with you.

Tip #3

Just as real estate brokers say the three most important things in real estate are location, location and location, the three most important things for experts are credibility, credibility and credibility. If you fail to establish credibility, your effectiveness as an expert is very limited. Although everyone casts their professional qualifications and experience in the most favorable light possible, never exaggerate qualifications on your resume. If you are truly an expert in your field, any exaggerations will only diminish your credibility before a jury.

Tip #4

Remember that an expert’s theories and opinions are only as valid as the facts upon which they are based. Therefore, be especially prepared to identify every note, memoranda, statement, report, letter, photograph, transcribed conversation and document you reviewed in rendering your opinion. Very often an expert will render an opinion at his or her deposition but fail to recall each of the items upon which they relied in rendering such opinion. Then at trial the expert will testify about certain facts upon which he relied in rendering his opinion, which he omitted from his or her deposition.

Although the opinions of an expert may be sound, if those opinions cannot be supported by identifiable, admissible evidence based upon facts developed in the case, the expert’s theories may be rejected by the jury and even limited by the court.

Tip #5

Always answer the deposing attorney’s questions directly and succinctly, and never volunteer information. Unless specifically asked, the expert should not feel obligated to educate the deposing attorney about the subject of the litigation. If the attorney neglects to ask certain questions about specific areas during the deposition, the expert is not precluded from later testifying about those areas. Find the balance between making the attorney work for each answer and providing lucid, direct and thorough responses to his or her questions.

Tip #6

Prepare for your deposition by re-reading any relevant articles, books and publications that you have authored as well as any deposition testimony given in other cases. Such information is frequently obtained by the deposing attorney prior to your deposition. There is probably nothing more effective than using an expert’s authored publications and/or the expert’s deposition testimony in other cases, to impeach his/her credibility.

Conclusion

The deposition of the expert is perhaps the true test of the strength or weakness of a case. Use these observations and tips in preparing for and testifying effectively at deposition. 

ABOUT THE AUTHOR

Nelson E. Canter, Esq., former Assistant District Attorney in Westchester County, New York, is the Managing Partner of the White Plains Office of the national law firm of Clausen Miller P.C. He is Captain of his local fire department and has been an active firefighter for the past 22 years. Mr. Canter also is the New York State Delegate for the Attorney Advisory Committee for the International Association of Arson Investigators.

riskVue | The webzine for risk management professionals
February 2002