Steven Babitsky, Esq.

Attorneys who are preparing their expert witness for deposition frequently start with the key aspects of the expert’s anticipated testimony (e.g. opinions, methodologies, etc.).

One often overlooked key question is: What are you most concerned about?

All expert witnesses, including experienced ones, come to their deposition with concerns, fears, anxieties, etc. These should be dealt with before any discussion of the substantive issues in the case. The important issues in the case counsel thinks the expert needs to be concerned about often do not include issues troubling the expert. Failure to deal with the expert’s fears and concerns will often result in a suboptimal performance by the expert witness.

Case Example: Past Conduct

When preparing an expert witness for a challenging deposition, I asked what are you most concerned about? The expert was very relieved to go over a series of her concerns, including: a misdemeanor criminal conviction, messy divorce, and inappropriate behavior at college some 25 years prior. Once she was advised that these issues were unlikely to be raised and even if raised, would not be admissible at the trial, the expert was notably relieved and able to concentrate on the substantive issues in the case.

Case Example: Referring to Report

When I asked the expert at the beginning of the deposition, “what are you most concerned about?” he answered that he was worried about remembering dates and other factual information. He was relieved to hear he could refer to his report to look up these facts as the deposition was not a memory test.


The most important question to ask the expert witness at the start of any deposition preparation is simply: What are you most concerned about?

Discussing these issues will help relax the expert and reduce any unnecessary fear and anxiety. The expert and counsel can then concentrate on the substantive issues likely to be raised at the deposition.

About the Author

Steven Babitsky, Esq. is the President of SEAK, Inc. the Expert Witness Training Company and is the co-author of the text “How to Prepare Your Expert Witness for Deposition.”