Expert Witness Deposition Preparation
By: Steven Babitsky Esq. & James J. Mangraviti Jr., Esq.
Expert witnesses are frequently inadequately prepared by retaining counsel for their depositions. In traveling across the United States and working with experts, this refrain and complaint has been expressed to the authors over and over again by experts from all disciplines. The size of the case does not seem to matter. Experts are ill-prepared by counsel in small, medium, and even large dollar cases.
What Do We Mean By Ill-Prepared?
Lack of proper preparation by retaining counsel can take many different forms, including:
• Refusal to meet with the expert to prepare at all, prior to the deposition.
• Agreeing to meet with the expert for a very limited time (i.e. 30 minutes) immediately prior to the deposition at a coffee shop.
• Sending an associate unfamiliar with the case to meet with the expert to prepare her.
• Meeting with the expert, but not going over the theme of the case, the latest documents, developments, and the areas of concern of the expert.
• Meeting with the expert to prepare, but refusing to do a run-through of the likely question to be asked.
How Important is it For an Expert to Go Through a Mock Deposition?
In the recent book, Choke: What the Secrets of the Brain Reveal About Getting it Right When You Have To, Sian Beilock Ph.D, an expert on performance states:
Even practicing under mild levels of stress can prevent you from choking when high levels of stress come around…practicing under the types of pressure you will face on the big testing day is one of the best ways to combat choking.
Why Would Counsel Refuse to Prepare His Expert?
Experts are always surprised by retaining counsel’s failure to properly prepare them for their deposition. Logically, it would seem counsel would want to prepare their experts to assure good presentation of the expert’s opinions. The reasons advanced by counsel for this lack of adequate preparation, include:
• Lack of Time- Many lawyers are overextended with too many obligations and too little time to satisfy them.
• Financial Reasons-With experts charging $300-$500 per hour or more, an in-depth preparation session with the expert could run thousands of dollars.
• Expert is the Expert-Many attorneys feel that the reason they hired the expert in the first place is due to their subject matter expertise. When the expert is an “experienced” testifier as well, there is really no need to waste time and money to prepare them.
• Spontaneity-Some attorneys want the expert to be himself, spontaneous, and un-rehearsed. They feel the expert will come across better without any preparation.
Experts have told the authors many horror stories of their lack of preparation by counsel. For example:
• A medical expert recounted the failure of counsel to spend more than 30 minutes with her prior to a $5 million case. The expert was ripped to shreds at the deposition. The excuse of counsel was lack of time.
• A vocational expert tells of retaining counsel absolutely refusing to prepare him at all prior to a key deposition in a federal employment case. The vocational expert did poorly and his confidence was shaken.
How bad has this crisis gotten?
The authors recently met with a forensic expert who has been burned several times and now insists in writing in his contract of employment that, at a minimum, counsel spends four hours preparing him for his depositions.
Risks for the Expert
When the expert is ill-prepared by counsel for a deposition, the risks for the expert can be significant, including:
• Permanent damage to the expert’s reputation.
• Shaking the confidence of the expert.
• Videotaped deposition of the poor performance played over and over again by counsel in future depositions/trials.
• Decrease in future business.
• Increased risk of successful Daubert challenges.
What can experts to do protect themselves from being ill-prepared by counsel for their deposition?
• First Have a clause in your retention agreement providing that counsel must adequately prepare you for your deposition or you will have the right to withdraw from the case.
• Second Insist that counsel meet with you, address all of your areas of concern, and do a complete run through of your deposition.
• Third If counsel refuses to adequately prepare you for an important upcoming deposition, retain someone to spend the time necessary to prepare you so that you excel at your deposition.
To purchase the text, please click: How to Prepare Your Expert Witness for Deposition
About the Authors
Steven Babitsky and James J. Mangraviti, Jr. are both former litigators who have trained thousands of expert witnesses. They are the co-leaders of the annual National Expert Witness Seminar, have co-authored numerous texts on expert witnessing including The A-Z Guide to Expert Witnessing, Cross-Examination: The Comprehensive Guide for Experts, National Guide to Expert Witness Fees and Billing Procedures, Depositions: The Comprehensive Guide for Expert Witnesses, Writing and Defending Your Expert Report: The Step-by-Step Guide with Models, How to Become a Dangerous Expert Witness: Advanced Techniques and Strategies, and The Biggest Mistakes Expert Witnesses Make: And How to Avoid Them and have co-produced several educational DVDs for expert witnesses. Steve and Jim currently serve as principals of SEAK, Inc. a national continuing education firm specializing in training, consulting, and services for expert witnesses of all specialties. For more information please visit www.testifyingtraining.com.