How to Prepare for Your Expert Witness Deposition

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hi I'm attorney Jim mangrove Eadie and

I'm here with the attorney Steve

povitsky from seek and we'll get

expert witness deposition Steve why is

it so important for an expert witness to

diligently prepare for his or her

deposition nowadays 97% of all cases are

settled prior to trial so realistically

the main ways that people testify now

are at deposition and at that position

the expert very often has more at stake

than the lawyer the lawyer has many

cases he he or she can win or lose but

the expert only has one reputation and

if they mess up at a deposition they the

word will get out to other lawyers and a

worst case scenario if it's a videotaped

deposition the next thing you know it

will be on YouTube well let's take the

flip side of that what can happen to an

expert or foreign expert if an expert

witness really does well in nails their

deposition as opposed to tanking it very

often you will see an expert that does

well at a deposition many times there

are many attorneys there there may be

five or six different attorneys at the

end of a deposition like that

traditionally what happens is that all

of the attorneys go up to the expert and

will take his or her business card and

put it in the in their briefcase and the

reason is very simple they're impressed

by the experts performance at a

deposition and they will they may hire

them in the future so for an expert if

you talk about marketing the best

possible marketing for an expert witness

is excelling at their deposition if it's

an hour or two or three or four hours

videotaped deposition that's almost can

be an infomercial for those expert

witnesses all right let's talk about the

work that's done before the deposition

by the expert the investigation the

report things like that how does that

work that work that's done before the

deposition influence what's going to

happen or what's likely to happen at the

deposition Steve well the work you do

prior to the deposition is the building

blocks for the deposition the attorney

taking your deposition will have done

probably a tremendous amount of work he

or she may know your report better than

you do they've been studying it for

weeks or for months they've done

independent internet research on you

they've studied all the records in the

case so if you took any shortcuts during

your preparation for that

if you didn't go on site if you didn't

do the the correct methodology if you

didn't do the right inspections you

didn't write a good report all of that's

going to come out during your deposition

so the the spade work that you do prior

to the deposition is the building blocks

upon which that deposition is based if

you have a solid foundation you're set

up well for your deposition if on the

other hand you have a shoddy foundation

then the building may collapse at the

deposition now here's a softball

question for you would you mind giving

us a demonstration perhaps of what can

happen to an expert witness and how they

can get skewered let's say if they've

done shoddy work prior to the deposition

be happy to Jim mr. Mann gravida you

should have report in this case correct

I sure did is this a copy of your report

yes now doctor as I understand it there

were various medical records in this

case sure and you listed on page two the

medical records that you reviewed

correct yep that's correct now on page

two did you happen to list the

psychiatric records psychiatric records

yes there are psychiatric records in

this case are there not doctor I wasn't

aware of that well isn't that an

important thing to know if there are

psychiatric records in a case in the

case that you reviewed well it'd be a

good thing to know I don't know whether

it's important but it would be certainly

be it could be helpful is there anything

in the psychiatric right by the way how

many pages of psychiatric records are

there why I don't know I didn't see any

so there could be is ten pages or one

hundred pages or there could be no pages

I just don't know well let's assume that

there are records psychiatric records

could anything in the psychiatric

records that you didn't bother to read

affect your opinion here today I don't

know I didn't read them so as you sit

here today your opinion may be wrong but

as you never bothered to read the

psychiatric records correct

I wasn't provided any psychiatric right

did you ask for the record sir which

records will that the psychiatric record

you follow me here did you ask for the

psychiatric record sir I didn't know

that they existed so I wouldn't ask for

something I didn't know that

that they were referenced in the other

records sir I have your other records

and they were referenced in the other

the orthopedic record did you ask for

the psychiatric records or did you not

ask for them I did not ask for them okay

is that a mistake sir should you have

asked for them I don't know how to

answer that question thank you very much

doctor Steve what do you suggest expert

witnesses do to prepare for their

depositions I would recommend five six

five or six different things number one

do a good job on the case you have to do

an excellent job on the case to do an

excellent job at your deposition

number two get organized make sure your

file is organized so that you can

retrieve pieces of paper and documents

at a moment's notice at a deposition you

may be under a fair amount of pressure

to come up with some answers it's an

open book test so you can look in your

file but if you can't find the documents

in your file when you need them it's it

can be you can lose a case because of it

I remember when I was trying case I used

to say that I lost the case because I

couldn't find a paper clip at the right

time touch every piece of paper in your

file don't assume that you remember

everything these cases go on for years

and years so go through your file

mechanically and touch every piece of

paper in your file you also want to

prepare by yourself you want to look at

your file and think about the questions

you might be asked and think about

artful honest truthful answers how you

can answer those questions you want to

prepare with retaining counsel and this

is a bit of a problem because often

times retaining counsel will say that

they're too busy to prepare you you

don't need to be prepared because you're

an expert whatever and if necessary you

need to insist with retaining counsel

that they spend the time to properly

prepare you because it's going to be you

answering the questions and it's your

reputation on the line if you do not do

well at that deposition that can come

back to haunt you in future cases and

may affect your credibility and your

marketability as an expert witness and

the last thing is if and when the

retaining attorney tells you he or she

has no time to prepare you they'll

either say I have no time to prepare you

or even worse say

meet me a half an hour before at a local

coffee shop

and we'll go over your case I've had

that we've both had that many many times

totally insufficient you can't go over a

file with 3,000 documents and half an

hour in a coffee shop it's your

reputation on the line you have just as

much if not more to lose than the

retaining attorney so if you can't get

the retaining attorney to assist you you

should have to consider hiring outside

help to assist you preparing for that

deposition so when it comes time to the

deposition you will Excel well let's

talk about outside help that's one of

the things that you do it's could you

talk a little bit about the methodology

that we employ when we would prepare

experts from one-on-one for their

depositions sure the first thing I

always do when I'm working with an

expert witness at a deposition preparing

for deposition is I always ask them what

are they concerned about if they're

concerned about an issue it's extremely

important to them oftentimes they're

concerned about things which really not

that important it may be some they got a

speeding ticket

they had a divorce 20 years ago or

something which will never be brought up

at the deposition or at the trial so you

need to go through that with them very

often they will come up and tell you

things about what they're concerned

about which are not in the file and many

times we both worked on situations with

that first question what are you worried

about it what are you concerned about

became more important than any of the

documents in the file so that's the

first thing I do the second thing is we

review the past transcripts of the

expert witness and the client and the

reason is this most experts have given

many depositions some of them give them

a lot more than others and very often we

as experts and we as lawyers fall into a

pattern where we make the same mistakes

over and over again so when we look at

expert witness transcripts or videos we

see the same expert making the same

mistake over and over again it could be

interrupting a lawyer it could be not

actively listening it could be people

drowning on answering in a lengthy

fashion when they should answer simply

there's 50 or 60 or 70 mistakes that

experts make so by looking at the


we can tell them how they can improve we

then identify their weak spots we go

over their weak spots in the case and

practice with them one of the most

important things we do on their weak

spots is identify areas which we know or

suspect will come up so a good attorney

preparing an expert witness for a

deposition in my opinion should be able

to get 90% of the questions that are

going to be asked in that situation it's

the difference between when you when

you're not prepared going to into an

exam and not having the questions in

advance or if you are prepared well by

somebody who knows what they're doing

having the questions in advance so you

can think about them and then answer the

questions at the deposition which we

will definitely do much better if we

practice with the expert witnesses we

tear them down we give them hard

questions to answers that they get used

to the competitive nature sometimes of

these depositions and then we build them

up and very often that's not hard to do

because the experts recognize themselves

as we ask them questions and we practice

with them they start to get better and

better sometimes you videotape sometimes

the audiotape but they get better and

better and very often you start seeing

it see them smile because they know

they're getting better now if you were

going to schedule one-on-one training

what I want preparation for an expert

deposition when would you recommend that

that take place relative to the date of

the deposition well we rely on the

client to tell them what's a good date

but we recommend generally one to two

weeks prior to the deposition to give

them some time to think about what they

what they want to do with the with the

with the deposition and the difficult

questions but not too far away from the

deposition so they don't forget all the

techniques we teach them yeah and also

if they want to if we give them homework

to do you need to figure out XY and Z

they have time to do it right absolutely

very often we go to thank you for mine

and we go to the deposition preparation

session and we go through the difficult

questions that we made up for them and

five or ten questions they have no

answer for they have to go back review

their methodology review their protocol

and then come up with an answer and

giving them adequate time to do that is

important Steve what is seek and how to

seek assist at

for witnesses seek is a testifying

training company and what we do is we

provide many services for expert

witnesses with regard to depositions and

other and other areas of testimony we

have conferences and seminars that we

run throughout the year throughout the

country we also have books on

depositions across examination which

people could look at on our website we

have a deposition outline which people

can access for free and no charge at

testifying training.com and also what we

were talking what we've been talking

about before when expert witnesses find

out that retaining counsel will not

properly prepare them for they

deposition and when they know they have

a challenging deposition coming up what

they can do is they can contact myself

or you Jim or Nadine at our company and

we can work with them one on one to go

over their concerns their issues and

make sure that they excel at their

deposition thank you very much