Defending Expert Opinions at Deposition
Once your expert has crafted his or her opinions, they must hold up under cross-examination at deposition and trial. Part Two of this series provides tips for helping your expert give the strongest and safest deposition testimony.
Preparing for the deposition
Shortly before a deposition, the expert should refresh their memory of the key facts and the details of their opinions and methodology. To enhance such preparation you should discuss with the expert the most important questions that you expect will be asked, and practice answering those questions. Experts should be ready to be questioned on what they did to prepare for the deposition, including what conversations they had with the hiring attorney and the materials reviewed. You should keep from disclosing to the expert any privileged material or information that you don’t want discovered, so that the expert can answer candidly about your preparations.
Defending the expert opinions at deposition
Experts may think the goal of a deposition is to explain their opinions as clearly and thoroughly as possible. Explain that the deposition is a better place for generalities because it is common for details to evolve between the time of the deposition and trial, and some opinions may require modification due to new information. This does not mean the expert should dodge any questions during the deposition — only that when the question seeks general information, the expert should not feel compelled to volunteer details. Advise your experts that a deposition is not like testifying in court, and that they will not convince the opposing attorney of the correctness of their opinions.
Remind your expert to listen to the questions as they are phrased, and respond to the specific question asked. The expert should not attempt to correct the question, unless it is a clear misstatement, or if the question as phrased is impossible to answer. In other words, the expert should not tell the attorney the question that they should have asked, but simply answer what they did ask.
Resisting the urge to educate
Your expert should have an advantage over opposing counsel with respect to substantive knowledge in his area of expertise. Unless your opposing counsel holds similar degrees and has similar experience, that lawyer cannot hope to master the expert’s area of expertise. Instead, opposing counsel will attempt to use legal constraints to box in the expert. The expert will often be pulled into the role of educator, or put on the defensive regarding his opinions. During the deposition, the expert should treat the opposing attorney like a student being tested rather than one being educated. The expert should use the questions asked to evaluate how much the lawyer knows about the subject.
Often an attorney asks a question which shows an incorrect or incomplete understanding of an issue. It is human nature for the expert to try to explain and educate when it is apparent that the other party does not have a clear understanding. Tell your experts they must resist this urge! The rules of discovery have evolved so that there are very few opportunities for surprises in any trial. One occasion where you may have an advantage is where the other side genuinely misunderstands the theories or principles involved in the case. If an attorney has not studied thoroughly, the expert will remove any advantage by correcting and educating the attorney. Thinking of the deposition as a test for the attorney will help the expert to resist the urge to educate.
Sometimes an attorney will phrase a question so that it seeks a partial answer. The expert should provide the information requested, and refrain from volunteering additional information beyond the scope of the question. This is merely a variation of the familiar advice that the witness should not volunteer any information. Let the expert know that volunteering information or explaining an answer beyond the scope of what is requested may make them appear defensive because it suggests the answer they gave initially was somehow inadequate. A more confident witness will provide only the information requested, and wait for the questioner to pursue the additional information. If the questioner does not follow up and obtain the information, it may give you a strategic advantage.
Stay tuned for Part Three: Defending Expert Opinions at Trial.