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Preparing for Deposition: Quick Tips for Attorneys and Experts

October 3, 2012

“Deposition Testimony 101”

Whether it’s in a deposition or in a courtroom, a stellar expert witness testimony is often simple, clear and concise. The preparation to get to that point is rarely covered by one meeting, so the first step for an attorney is to get to know the key witness. Understand what he or she does/doesn’t know, can/can’t demonstrate on the spot, as well as his or her recollection capability and presentation skills.

Getting to know you:

Get to know the capabilities of the expert. If there is a demonstration or calculation that he or she performed for the expert report, watch the expert demonstrate it a few times in front of you to ensure he or she can do it fluidly on the stand.


1. Orient the expert

Paint a picture of the courtroom or deposition conference room that the expert will be testifying in. Tell who will be there, where everyone will be seated and the general procedure of swearing-in etc.

Provide background on opposing counsel. Opposing counsel will be doing his or her best to discredit everything the expert says, so forewarn the expert that things may escalate, be aggressive, or even hostile.

2. Be patient

There is no right or wrong length of time to lapse before an expert answers a question, but have the expert aim to take a couple of moments in order to contemplate the question and arrange an answer.  As a reference length of time:

Have the expert mentally “look both ways” as if crossing a street

3. Combat the “I don’t know” answer

Rather than answering “I don’t know” if  an expert can’t recall the correct answer, maintain credibility by answering like this:

“At this point in time, I don’t have a clear recollection of that.”

“I can’t tell you exactly when it happened, I can only tell you the order in which it happened.”

“I don’t remember exactly what I earned last year, but I believe you have my tax return (record).

3. Be Honest

Don’t lie. If the expert lies during trial testimony, the opposing counsel can pull a contradictory quote from a previous deposition to expose the lie.

All truthful responses fall into three categories-the three R’s of being truthful:

(1) I can RECALL it;

(2) I can’t recall it, but it’s in a written RECORD; or

(3) I can’t recall it, but it’s my ROUTINE.

4. Work together

In case the expert is backed into a corner by opposing counsel, the attorney should prep the expert on what objections might be made, and to take an objection as a hint (ie: this is a leading question, take your time to answer carefully, etc.)


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