Even experienced experts can improve their deposition performance by avoiding these common mistakes:
1. Not Actively Listening
Many experts do not effectively employ active listening skills at their deposition. Hearing and understanding each and every word in the question is crucial. If you do not understand a question, you should not answer it.
2. Interrupting Counsel
Some experts behave as if they are a contestant on the show Jeopardy and interrupt counsel as soon as they feel they know what counsel is going to ask. Let counsel finish asking the question and then respond.
Experts who guess or speculate at deposition are setting themselves up for failure. When you do not know an answer, do not be afraid to say: “I don’t know.”
4. Saying “I do not know, but…”
Any words you state after the phrase “I do not know, but…” are almost always a mistake. (See #3 above).
Experts who joke or wise crack are making a mistake. Humor does not translate well in a deposition transcript. Avoid attempts at comedy during your deposition.
6. Subpoena Non-Compliance
When you are served a subpoena duces tecum you are required to produce the documents requested unless you follow the proper procedures for objecting and/or quashing the subpoena. If you feel the subpoena is overly broad, ask retaining counsel for assistance.
7. Getting Baited into Anger
One of the techniques opposing counsel will use at deposition is to intentionally try to get you mad. This is intended to upset you and impact the quality of your testimony. Remain cool, calm, and collected at your deposition.
8. Use of Hedge Words
Any time you use “hedge words” such as “could,” “it seems,” “apparently,” “may,” “I suspect,” “as far as I can tell,” etc., it undercuts the power and persuasiveness of your testimony. Avoid these hedge words.
9. Know When to Put the Period on the End of an Answer
The ability to answer a question and then stop talking is difficult for some experts. Learning how and when to end an answer is an important skill.
Expert witnesses who volunteer information at their deposition often open a Pandora’s box of additional and unwanted questions. Answer the questions asked and then stop talking.
For additional information, see the text How to Be an Effective Expert Witness at Deposition and Trial: The SEAK Guide to Testifying as an Expert Witness.
About the Author
Jessica Mahon Scoles, Esq. is a civil litigator who has worked with expert witnesses in a variety of cases. She currently serves as Vice-President of The Expert Witness Training Company SEAK, Inc. (www.testifyingtraining.com). Prior to joining SEAK, Jessica practiced law at a boutique firm in Boston (where she was named a Super Lawyers Rising Star), was a law clerk for Hon. Donald L. Cabell of the United States District Court for the District of Massachusetts, and was a litigation associate at the national law firm of Bingham McCutchen, LLP. She received her BS degree in Film Production cum laude from Boston University and her JD degree summa cum laude from Loyola Law School.