I’m Attorney Jim Mangraviti. I’m here with Attorney Steve Babitsky from SEAK, and we’re going to talk today about preparing for your expert witness deposition. Steve, why is it so important for an expert witness to diligently prepare for his or her deposition?
Steve Babitsky: Nowadays 97% of all cases are settled prior to trial. So realistically, the main ways that expert witnesses testify are at deposition. And at deposition, the expert very often has something more at stake than the lawyer. The lawyer has many cases he or she can win or lose, but the expert witness only has one reputation, and if they mess up at the deposition, the word will get out to other lawyers. And the worst case scenario, if it’s a videotape deposition, the next thing you know, it will be on YouTube.
Jim Mangraviti: Well, let’s take the flipside of that. What can happen to an expert if an expert witness does really well and nails the deposition as opposed to tanking it?
Steve Babitsky: Very often you will see an expert that does well in a deposition, many times there are many attorneys there. There might be five or six different attorneys. At the end of a deposition, traditionally what happens is all of the attorneys go up to the expert and will take his or her business card and put it in their briefcase. And the reason is very simple, they’re impressed by the expert’s performance at the deposition, and they may hire them in the future. So for an expert, if you talk about marketing, the best possible marketing for an expert is excelling during their expert witness deposition.
If it’s an hour, or two, or three, or four hour videotape deposition, that almost can be an infomercial for those expert witnesses.
Jim Mangraviti: All right, let’s talk about the work that is done before the deposition by the expert, the investigation, the report, things like that. How does that work that’s done before the deposition influence what’s going to happen or what’s likely to happen at the deposition, Steve?
Steve Babitsky: Well, the work that you do prior to the deposition is building blocks for the deposition. The attorney taking your deposition would 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 maybe months. They’ve done independent internet research on you. They’ve studied all of the records in the case. So if you’ve taken any shortcuts during your preparation for that case, if you didn’t go on site, if you didn’t do the correct methodology, if you didn’t do the right inspections, if you didn’t write a good report, all of that is going to come out during your deposition.
So 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.
Jim Mangraviti: 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 of they’ve done shoddy work prior to the deposition?
Steve Babitsky: I’d be happy to, Jim. Mr. Mangraviti, you issued a report in the case, correct?
Jim Mangraviti: I sure did.
Steve Babitsky: Is this a copy of your report?
Jim Mangraviti: Yes.
Steve Babitsky: Now Doctor, as I understand it, there were various medical records in this case?
Jim Mangraviti: Sure.
Steve Babitsky: And you listed on Page 2, the medical records that you reviewed, correct?
Jim Mangraviti: Yep, that’s correct.
Steve Babitsky: Now on Page 2, did you happen to list the psychiatric records?
Jim Mangraviti: Psychiatric records?
Steve Babitsky: Yes, there are psychiatric records in this case, are there not, Doctor?
Jim Mangraviti: I wasn’t aware of that.
Steve Babitsky: Well, isn’t that an important thing to know if there are psychiatric records in a case, in a case that you reviewed?
Jim Mangraviti: It would be a good thing to know. I don’t know whether it’s important, but it could be helpful.
Steve Babitsky: Is there anything in the psychiatric records, by the way, how many pages of psychiatric records are there?
Jim Mangraviti: Well, I don’t know. I didn’t see any psychiatric records.
Steve Babitsky: So there could ten pages or a hundred pages?
Jim Mangraviti: Or there could be no pages, I just don’t know.
Steve Babitsky: Well, let’s just 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?
Jim Mangraviti: I don’t know. I didn’t read them.
Steve Babitsky: So as you sit here today, your opinion may be wrong, because you never bothered to read the psychiatric records? Is that correct?
Jim Mangraviti: Well, I wasn’t provided with any psychiatric records.
Steve Babitsky: Did you ask for the records, sir?
Jim Mangraviti: Which records were that?
Steve Babitsky: The psychiatric records. Are you following me here? Did you ask for the psychiatric records, sir?
Jim Mangraviti: Well, I didn’t know that they existed, so I wouldn’t ask for something that I didn’t know existed.
Steve Babitsky: Well, they were referenced in the other records, sir. I have your other records, and they were referenced in the orthopedic records. Did you ask for the psychiatric records or did you not ask for them?
Jim Mangraviti: I did not ask for them.
Steve Babitsky: Okay. Is that a mistake, sir? Should you have asked for them?
Jim Mangraviti: I don’t know how to answer that question.
Steve Babitsky: Thank you very much, Doctor.
Jim Mangraviti: Steve, what do you suggest expert witnesses do to prepare for their depositions?
Steve Babitsky: I would recommend 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, you can lose a case because of it. I remember I was trying cases, I used to say I lost a 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. 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 bit of a problem, because oftentimes 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 don’t have 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.
You can’t go over a file with 3,000 documents in a 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 consider hiring outside help to assist you preparing for that deposition so when it comes time for the deposition, you will excel.
Jim Mangraviti: Well, let’s talk about that outside help. That’s one of the things that you do. Could you talk a little bit about the methodology that we employ when we prepare experts one-on-one for their depositions.
Steve Babitsky: Sure. The first thing I always do when I’m working with an expert witness at a deposition, preparing for a 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 are really not that important. It may be 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 where that first question, what are you worried about or 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 we do is we review the past transcripts of the expert witnesses and the client. And the reason is this, most experts have given many depositions. Some of them have given 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, and we see the same expert making the same mistakes over and over again.
It could be interrupting a lawyer. It could be not actively listening. It could be people droning on, answering in a lengthy fashion when they should simply. There’s 50, 60, 70 mistakes that experts make. So by looking at the transcripts, 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 that 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.
And that situation is the difference between when you’re not prepared going 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 that you can think about them and then answer the questions at the deposition which you will definitely do much better.
We practice with the expert witnesses. We tear them down. We give them hard questions to answer so that they get used to the combative nature sometimes of these depositions and then we build them up. And very often, and 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 we videotape. Sometimes we audiotape, but they get better and better. And very often you start seeing them smile, because they know they’re getting better.
Jim Mangraviti: Now if you were going to schedule one-on-one preparation for an expert’s deposition, when would you recommend that take place relative to the date of the deposition?
Steve Babitsky: Well, we rely on the client to tell us 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 want to do with the deposition and the difficult questions. But not too far away from the deposition so that they don’t forget all of the techniques that we teach them.
Jim Mangraviti: Yeah, and also if we give them homework to do, you need to figure out X,Y,Z, they have time to do it, right?
Steve Babitsky: Absolutely. Very often, thank you for reminding me, 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 the answer. Giving them adequate time to do that is important.
Jim Mangraviti: Steve, what is SEAK and how does a SEAK assist expert witnesses?
Steve Babitsky: SEAK is the testifying training company. And what we do is we provide many services for expert witnesses with regard to depositions and other areas of testimony. We have conferences and seminars that we run throughout the year and throughout the country. We also have books on depositions and cross examinations which people can look at on our website. We have a deposition outline which people can access for free at no charge at testifyingtraining.com.
And also, what we have been talking about before, when expert witnesses find out that retaining counsel will not properly prepare them for their 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.
Jim Mangraviti: Thank you very much.