An expert deposition is a formal proceeding. I can only speak from my own experience in having my deposition taken and in attending a number of depositions of other experts or parties to various matters. There is one thing that is true in the majority of expert depositions I have seen. The opposing attorney prepares for the deposition. In a recent deposition, opposing counsel had his outline of questions to ask me contained in a three-ring notebook. I couldn’t be sure, but it appeared to have more than 50 pages of typewritten questions.
If opposing counsel is going to prepare for your deposition as an expert witness, it is equally critical that you prepare as well. Preparation for an expert deposition entails a number of activities:
- Do good work all the time. In some cases, experts are retained to prepare business valuation, economic damages or financial forensic reports in the context of litigation. In those cases, it is critical to do good work, to support each opinion, to be sure that the math checks out, and to be certain that a report is internally consistent and consistent with an expert’s prior work, writings and speaking. However, your first deposition may not arise because you were retained as an expert. You may be deposed on a report that you prepared in the ordinary course of business. This could happen with a report prepared for tax purposes, for a buy-sell agreement, for an ESOP, or for some other purpose. In those cases, you don’t get a chance to “do the report over” for the litigation. You must live with the report you signed long ago. It is just a good thing to remember to do good work all the time.
- Read your expert report. Experts write reports that summarize their opinions and provide the basis, support and rationale for their opinions. In business valuation and economic damages matters, expert reports can be of considerable length, perhaps 100, 200, 300 or more pages. In many cases, considerable time will have passed between the submission of an expert’s report and his or her deposition. This makes it essential to read the report carefully, and from cover to cover, including all boilerplate. An expert has to be familiar with what is in her report as well as what is not in the report.
- Review the entire file. An expert’s file will contain many documents, maybe hundreds or even many thousands of them. The expert must review the file to know what is there. In large litigations with literally thousands of documents, it may be necessary for another professional to review documents. If so, the expert then must review the key documents identified in that review. Not every document will have been relied upon, but you have to be familiar with the key documents supporting your opinion. When working on litigation matters, I routinely accumulate the major documents that will be referenced in a spiral-bound notebook. Depending on the circumstances, I may take my own notebook to deposition or trial because I am familiar with the book and the documents. In any event, I review those documents carefully, often multiple times.
- Prepare a list of key names, dates or other key information you do not want to forget. I typically prepare a list that includes the name(s) of our clients, all the attorneys we have worked with on our side, opposing counsel, opposing experts, and key dates or documents I may want for instant recall. There are no opinions on this list, just names and facts. You will only forget the name of your client one time – when the client is sitting in your deposition – before you initiate this habit.
- Respond fully to any subpoena for your file. Most expert depositions are noticed with subpoena duces tecum, which is a request for the expert’s presence at a deposition as well as for documentary evidence from his files. In our shop, subpoenas are provided to our in-house counsel and she reviews the file in order to be sure that we comply. This means that experts shouldn’t put things into their files that they don’t want someone else to see. Opposing counsel will ask the expert whether he or she has complied with the subpoena.
- Meet with counsel to prepare for the deposition. This meeting (or meetings) provides a deadline for the expert in doing the preparations noted above. Counsel will usually have some idea of how opposing counsel will approach your deposition, and the themes he things you can expect to see. Counsel can give you information about the style of the opposing counsel who will be taking the deposition. It is a good idea to do an internet search and read biographical information about opposing counsel.
- Know your objective for the deposition. Some experts go into depositions loaded, as it were, for bear. They want to try to “win” the deposition by proving their opinions zealously.
An attorney told me long ago to avoid the temptation of trying to “win” a deposition. He observed that the rules for depositions and trials as they relate to experts were written by attorneys and conducted by attorneys. He then said something I’ve not forgotten: “Chris, your objective in this deposition is not to win it. Your objective is not to lose.”
- Discuss your approach to comments about opposing expert reports with counsel. In some cases, counsel will want you to be prepared to comment on the report of one or more other experts. If so, outline your comments in advance so that you are organized when asked for your opinions regarding the report(s). In other cases, counsel may have retained another expert to handle rebuttal, and you would not be expected to comment, even if asked by opposing counsel. It is okay not to have opinions about other experts.
- Talk with counsel about local rules applicable to depositions. In some jurisdictions, experts are not allowed to talk with counsel for their side during a deposition. I recall one arbitration in which I testified where this rule was in place. As we reached the end of the day during my testimony, opposing counsel opened a report that I had issued some years before and read a portion that appeared to impeach my testimony. The problem was, I couldn’t remember the details of that earlier report on the spot. Fortunately, the day ended at that point. The arbitration resumed three weeks later, and I was unable to talk with counsel about the testimony at all during that period. However, I did pull a copy of the report that opposing counsel had read from. He had clearly taken his quote out of context. I brought a copy of the report when I returned to the stand and asked for time to respond to the final question from the previous session. With permission from my earlier client, I read the portion of the report that counsel had tried to trip me with, but I read that portion in appropriate context. In that light, there was no impeachment. Indeed, the earlier report supported my testimony in the arbitration. That’s a long story, but the point is, know the rules.
- Get a good night’s sleep the night before your deposition. Depositions can be long and grueling. In some jurisdictions, they are limited to seven hours of deposition time. Seven hours, though, can be a long time, so it is good to be rested. For multi-day depositions, getting good rest is critical. It takes a great deal of mental focus and physical energy to give a good deposition. So take care of yourself as a key part of preparing.
The central idea behind preparing for an expert deposition is to be sure that the expert is as ready as possible. Preparation is essential for experts to give good depositions. In the next post, I’ll talk some about giving a deposition, or having a deposition taken. However, I hope that the ideas in this post will be helpful to attorneys who work with business valuation and damages experts as well as to professionals who are facing depositions in their futures.
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Question. If you have an interesting experience testifying (if you are an appraiser), or regarding an experience you had in a deposition or trial with an expert (if you are an attorney), please share in the comments below. If you would rather share with me privately, please do so at firstname.lastname@example.org.
Until next time, be well!