Expert witnesses who are to be deposed in challenging cases should consider studying the style of opposing counsel. Expert witnesses of all disciplines, from accident reconstruction to wound care should go beyond looking at counsel’s webpage and maybe a few of her publications.
Expert witnesses, with the assistance of retaining counsel, should obtain deposition transcripts/videos of opposing counsel deposing experts in cases similar to the expert’s upcoming deposition. Reading/viewing opposing counsel in action will help the expert overcome some of the free-flowing anxiety that naturally comes. In addition, the expert will be able to see the style, types of questions, demeanor, and areas of inquiry pursued by opposing counsel.
Oftentimes, counsel will use the same or similar questions repeatedly in cases which deal with similar causes of action.
Example: Style of Opposing Counsel
I was retained by a law firm to assist in preparing their expert witness in a challenging case. One of the first things I requested was for counsel to provide me with 2-3 transcripts of opposing counsel conducting depositions in cases similar to the one I was retained on. In reading and analyzing three prior deposition transcripts we were able to see clear patterns of questioning that our expert was likely to face. These ranged from similar introductory, qualifications, money, and testifying experience questions from case to case. More significantly were the types of open-ended questions that opposing counsel used repeatedly. For example:
- “Tell me what you knew about…”
- “What does the term ________ in your report mean to you?”
- “Explain to me why _________ is not true.”
- “Show me where in the record… you found that information.”
- “Did you study… before forming your opinions, etc.?”
Retaining counsel and I were able to use this precise type of questioning to successfully prepare their witness. In fact, after the deposition the expert expressed that the preparation session was very helpful and more difficult than the actual deposition.
Conclusion
When time and resources permit, retaining counsel and their expert witness are well-served by obtaining past deposition transcripts/videos to utilize during their deposition preparation session.
About the Author
Steven Babitsky, Esq. is the President of SEAK, Inc., the Expert Witness Training Company. He is the co-author of How to Prepare Your Expert Witness for Deposition.