Book Review: How to Prepare Your Expert Witness for Deposition
James J. Mangraviti, Jr., Esq. and Steven Babitsky, Esq., SEAK, Inc. 2012, 359 pp.
Book Review by Michael D. Pakter
As medicine, technology, finance and industry have become more complex, taking in 21st century thinking and advances, the use of experts in litigation has become more common and important. Because most cases settle out of court, the outcome of a case, good or bad, often hinges on the strength of competing experts’ opinions, credibility and presentation in deposition testimony.
Experts are an important but very expensive component of any case, sometimes charging more than attorneys. So, especially from a case management/cost perspective, it’s important to make the most of your expert. How to Prepare Your Expert Witness for Deposition is a practical, detailed and informative guide for attorneys to help their experts prepare for and maximize performance at depositions. The authors, James J. Mangraviti, Jr., Esq. and Steven Babitsky, Esq., are former litigators and have trained thousands of experts to testify in various types of cases including personal injury, antitrust, patent, medical malpractice, wrongful death and computer forensics.
One of the book’s strengths is the authors’ advice and techniques are based on their extensive first hand experience in training thousands of expert witnesses. It is filled with sample questions and answers taken from actual depositions they have analyzed and critiqued. In addition, Appendix A provides sample expert witness deposition critiques and Appendix B provides a list of topics and questions typically asked by opposing counsel in order to annoy, rattle, or much worse, potentially disqualify an expert witness.
The book is detailed and well organized. It starts off with an executive summary that provides a good overall perspective on the authors’ deposition training techniques. Each following chapter starts with its own executive summary, goes on to explain concepts in further depth and includes sample deposition questions, answers and helpful “practice pointers.”
Chapters cover the following topics:
– How to Prepare Your Expert for Deposition
– Deposition Laws and Procedures Experts Must Know
– Explaining Opposing Counsel’s Strategies and Goals to Your Expert
– Deposition Advice for Your Expert
– Videotaped Depositions
– Commonly Asked Deposition Questions
– Understanding and Defeating Deposition Tactics
– Sample Trick and Difficult Questions
The authors’ central message is that advance preparation is critical. They stress that “even well-seasoned experts should be prepared. Never assume an experienced expert witness needs no preparation.” Their research has shown that “almost all experts perform at a higher level when prepared for deposition properly.” This preparation can have a significant practical impact on a case and be well worth the expense, as the authors assert: “The settlement value of your case is likely to be very closely correlated with how well your expert witness prepares for deposition.”
One of the most innovative preparation techniques presented by the authors is to obtain and critique copies of their expert’s prior depositions. This allows attorneys to identify the expert’s strengths and weaknesses and focus preparation on areas that need improvement. They caution against relying on an expert’s impressive qualifications and extensive experience: “While your expert may have testified in ten, twenty, or more depositions, he may be making the same mistakes over and over again.” Good point! The authors also suggest bringing in a new or different attorney or consultant, who can provide a fresh perspective, to help prep the expert. This will also help the expert to expect the unexpected.
Practical insights and suggestions for improving an expert’s response to deposition questions include:
– An expert’s ability to correctly hear and understand the questions being asked is the first step in providing an effective answer.
– Help your expert improve listening skills by testing him with questions he must immediately repeat back, word for word. The authors’ research shows that “few expert witnesses can precisely repeat a deposition question immediately after it is asked.”
– Experts should be trained to use active listening skills during questioning. For example, the expert should visualize the question written on a card.
– Experts should not answer confusing or unintelligible questions and should not help counsel rephrase or improve questions. Good listening skills help experts to discern between appropriate questions that should be answered and unintelligible questions that attorneys may use to trick or disrupt the expert’s thought flow.
Both experts and attorneys will benefit from Chapter 2.9, “Explain How your Expert Should Prepare on His Own.” Ultimately, the expert is alone at the deposition table and on the stand. Not only the outcome of a particular case, but an expert’s reputation and ability to obtain future engagements, depends on his deposition performance. Chapter 2.9 walks experts through the critical elements of success: mastering the key facts of the case, knowing their CV cold, knowing their expert report cold, being able to explain and justify their opinions using simple and understandable language, and being prepared for opposing counsel’s likely questions – especially questions designed to disqualify the expert or undermine his credibility.
The authors point out that experts should be careful that their CV presented at the deposition matches the CV on their website. It may seem like a minor concern, but even discrepancies on a CV can be attacked by opposing counsel and affect an expert’s overall credibility. Many experts are too busy working and testifying to make sure that their online and print materials are consistent. Make sure your expert takes the time.
Both attorneys and experts will benefit from reading How to Prepare Your Expert Witness for Deposition. The authors’ stress that there is no substitution for in-depth preparation and mastery of the details, facts and expert opinions presented. Credibility is key and depends on intensive preparation. The experience-tested ideas and techniques in this book are a valuable tool that will help attorneys achieve success with their expert witnesses.
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Michael D. Pakter has been recognized by courts and arbitral bodies as an expert in accounting, economic damages, financial analysis and business economics. Mr. Pakter focuses on financial analysis, forensic accounting, economic damages determination, valuation issues and financial investigations.