On August 11, 2023, Wheeler, DiUlio & Barnabei hosted a lunch & learn webinar entitled, Deposition Training: Being the Best Expert You Can Be. In this webinar, Partner Anthony DiUlio outlines best practices for preparing for depositions as an expert witness. Partner DiUlio discusses how to make good expert testimony and how to answer questions during the deposition.
Being an Expert
Different types of witnesses can be called during a deposition. Deposition strategies change depending on the type of witness. Fact witnesses, for instance, do not provide opinions or conclusions. On the other hand, an expert witness needs to support his or her position and opinion.
An expert is not necessarily the most knowledgeable person on the topic. Rather, an expert is someone who has specialized insight on the topic and can assist as a “fact-finder” in determining an issue of a case. In other words, you don’t have to be the best or most in the world to be the expert, you just need to know more than the average juror.
The Expert Report
The key to being a good expert is having a strong understanding of the topic of the case. Creating a strong, professional expert report prior to litigation is the first step in expressing that knowledge. But, what makes a compelling expert report? Here are four crucial elements to include:
- Background: The expert or public adjuster needs to provide information on his or her background to establish credibility. The reader needs to understand why the expert should be trusted. Background information may include any education, courses, or previous cases related to the topic.
- Investigation: The expert should present a detailed outline of the investigation. The outline should include who was involved as well as what, where, and when the investigation occurred.
- Findings: The expert should then list the findings of the investigation and explain what the individual did to determine these findings. For example, the expert needs to justify why the damage was evident.
- Conclusion: Having a strong conclusion summarizing the key points of the report is essential. Involved parties typically skip to the conclusion before reading the entire report. Be sure to highlight the important details from the sections above in the conclusion.
Preparing for the Deposition
Before the deposition, it is important to review the expert reports as well as any reports from the opposing parties. This allows all parties to be prepared for arguments and counterarguments that may arise during the deposition. In addition, speak with the counsel of the plaintiff to further understand their argument.
Do’s and Do Not’s: Good Expert Testimony
Once the reports have been reviewed, it is time to prepare for the expert deposition.
The most important aspect of good expert testimony is confidence. Confidence is built on how well the expert prepares for the deposition. However, it is important to remember the expert witness is called because this individual holds the knowledge necessary for the case. Therefore, this individual is expected to be confident in answering questions. When giving expert testimony, be the most likable person in the room. Do not joke or be sarcastic. Rather, be professional, polite, and honest to establish strong credibility.
With that, do not concur with questions just because the statement was phrased to be agreeable. Remain true to what is known as an expert and keep the theory of the case in mind when answering questions. Think, “Does this answer support or disprove the theory of the case.”
Furthermore, an expert is permitted to change his or her mind during the deposition if the facts presented in the case alter the expert’s position. More credibility will be lost if the witness backs previous statements the expert no longer believes are true. Also, remember the expert is allowed to forget elements of the case (although it is best if they don’t forget). If needed, the witness can use the expert report to remember specifics when answering questions.
Do’s and Do Not’s: Answering Deposition Questions
Answering questions during a deposition can be difficult. There are rules to help guide experts when answering questions.
For starters, remember that less is almost always more. Do not ramble about extraneous information that could invite more questions. Depositions are usually long. Be sure to answer the question in a manner that is short, direct, and to the point. If you need to add more detail to the response, add the detail first and answer the question at the end.
Next, tell the truth and do not exaggerate. Fabrications always lead to trouble as lying under oath is a crime. Simply state the damage and avoid qualifiers like “huge” or “small.” Adding specifics leaves space for opposing parties to disagree, argue, or diminish the validity of your statement.
Third, the expert can admit to not knowing the answer to a question. The expert should never provide an educated guess on information that is critical to the case. Unanswered questions can be supplemented after the deposition. A good response may be to express that although you do not know, the answer to their question would not change your opinion on the case. Then, provide an explanation as to why that would be the situation.
Here are a few more actions to avoid during a deposition: fighting or being combative, yelling, asking why a question is relevant, drinking or smoking, making assumptions, and mentioning conversations with counsel.
Questions from the Webinar
Are you allowed to have notes during the testimony?
Do not have notes during any testimony. Having notes makes that information discoverable, leaving room for the opposition to ask more questions. In addition, reading notes takes away the integrity of the expert’s true opinion. However, the expert report can be obtained only to refresh the expert’s recollection. Depositions can occur years after the expert inspected the property. Damage details can be lost or forgotten. Other than reading to better serve memories, an expert should proceed without any notes.
Are deponents required to answer hypothetical questions?
Asking hypothetical questions is a common tactic used to forward the attorney’s theory on the case. Deponents are required to answer the question, but how the question is answered can vary. There may be other questions the witness can ask that are important to know based on the hypothetical question. By continuing to inquire about deeper questions, the expert can dilute the previous hypothetical.
Have questions about deposition preparation? Contact Wheeler, DiUlio & Barnabei to learn more.
