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Depositions The Comprehensive Guide for Expert Witnesses

  • Expert Witness Depositions
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Depositions: The Comprehensive Guide for Expert Witnesses
By Steven Babitsky, Esq. and James J. Mangraviti, Jr., Esq. ©2007 SEAK, Inc. 

I had a six hour deposition yesterday from an aggressive, hard-crusted and competent attorney. The first three hours he asked me many questions that were right out of your books... He scored no points there, so the rest, which was clinical, was joyful.

The overwhelming majority of all testimony given by expert witnesses is given in depositions. Depositions: The Comprehensive Guide for Expert Witnesses shows expert witnesses how to excel during their depositions. You will learn: The questions you should expect to be asked,How to truthfully and artfully answer counsel’s questions,How to defeat opposing counsel’s tactics,Special techniques for excelling during videotaped depositions,The law governing depositions and how to avoid abuse,How to properly prepare for your deposition,How to set and collect your fee,Techniques for answering trick and difficult questions, and Much, much more. Features: Chapter 1 Deposition Law and Procedure
Chapter 2 Understanding the Strategies and Goals of Opposing Counsel
Chapter 3 Preparing for Your Deposition
Chapter 4 Subpoenas, Subpoenas Duces Tecum, and the Use of Documents
Chapter 5 What Experts Can Expect to Be Asked
Chapter 6 Deposition Advice for Expert Witnesses
Chapter 7 Understanding and Defeating Counsel’s Deposition Tactics
Chapter 8 Setting and Collecting Your Fee
Chapter 9 Videotaped Depositions
Chapter 10 Handling Abuse
Chapter 11 Truthfully and Artfully Answering Trick and Difficult Questions
Chapter 12 Sample Annotated Expert Deposition Transcripts
Appendix A FRCP Rule 26
Appendix B FRCP Rule 30
Appendix C An Example of Abusive Behavior Sanctioned by the Court
Appendix D Obstructive Behavior by Retaining Counsel
Appendix E Sample Schedule from Subpoena Duces Tecum
Appendix F Sample Notice of Deposition
Appendix G Example of Deposition Errata Sheet
Appendix H Expert Deposition Preparation Checklist


CONTENTS 


Chapter 1 Deposition Law and Procedure
1.1 INTRODUCTION AND EXECUTIVE SUMMARY
1.2 DEPOSITION BASICS
Expert Witness Depositions
Recording of Depositions
Videotaped Depositions
The Standard or Usual Stipulations
Reading and Signing the Deposition Transcript
1.3 DEPOSITIONS ARE A COMPONENT OF THE DISCOVERY PROCESS
1.4 PRIVILEGE
1.5 WORK PRODUCT
1.6 DISCOVERY SANCTIONS
1.7 OBJECTIONS 1
1.8 EXPERT WITNESS FEES AT DEPOSITION
Reasonable Fee
Preparation Time
Travel Time
Reading and Signing
1.9 INSTRUCTIONS NOT TO ANSWER
1.10 UNPROFESSIONAL ATTORNEY CONDUCT
1.11 DEPOSITION PRACTICE AND PROCEDURE
1.12 CONCLUSION

Chapter 2 Understanding the Strategies and Goals of Opposing Counsel
2.1 INTRODUCTION AND EXECUTIVE SUMMARY
2.2 PRESERVATION OF EVIDENCE DEPOSITIONS
2.3 UNDERSTANDING HOW OPPOSING COUNSEL WILL PREPARE FOR THE EXPERT DEPOSITION
2.4 HOW COUNSEL’S DEPOSITION AND TRIAL QUESTIONING TECHNIQUES DIFFER
2.5 GOAL OF COUNSEL AT DISCOVERY DEPOSITIONS
Learn the Expert’s Opinions
Learn the Expert’s Qualifications
Lock Down the Expert with the Threat of Impeachment
Size up the Expert and His Likely Effectiveness as a Witness
Check to See if Bias of the expert Is at Issue
Discover the Expert’s Factual Assumptions
Gather as Much Information as Possible
Use the Expert to Help Counsel’s Case
Intimidate the Expert
Learn as Much as Possible about the Opponent’s Case to Evaluate Its Settlement Value
Learn What the Expert Did
Get the Expert to Give an Opinion off the Top of His Head
Set the Stage for a Later Motion to Disqualify the Expert or Throw out His Opinion
2.6 CONCLUSION

Chapter 3 Preparing for Your Deposition
3.1 INTRODUCTION AND EXECUTIVE SUMMARY
3.2 THE IMPORTANCE OF THOROUGH PREPARATION
3.3 CONFERENCE WITH COUNSEL
Questioning about Preparation
Role-Playing with Counsel
3.4 PREPARING BY ONESELF
The Facts of the Case
Review Important Dates
Know Your CV Cold
Know Your Report Cold
The Expert’s File
Questions the Expert Is Likely to Be Asked
The Expert’s Opinions
Rest and Relaxation
3.5 WHAT TO DO IF YOU ARE NOT PROPERLY PREPARED
3.6 CONCLUSION

Chapter 4 Subpoenas, Subpoenas Duces Tecum, and the Use of Documents at Deposition
4.1 INTRODUCTION AND EXECUTIVE SUMMARY
4.2 THE SUBPOENA
Failure to Appear
The Subpoena Duces Tecum
Documents Covered by Protective Orders
4.3 REFERRING TO AND DEALING WITH EXHIBITS
Referring to Exhibits
Take Time to Read Documents You Are Questioned On
4.4 NOTES AND UNDERLINING
Private Notes
4.5 HIDING DOCUMENTS IS A SERIOUS MISTAKE
4.6 COVER LETTERS FROM THE EXPERT’S CLIENT
4.7 BILLING INFORMATION
4.8 CONCLUSION

Chapter 5 What Experts Can Expect to Be Asked
5.1 INTRODUCTION AND EXECUTIVE SUMMARY
5.2 QUALIFICATIONS
5.3 CURRICULUM VITAE
5.4 OPINIONS
Opinions the Expert Will and Will Not Be Testifying To
Degree of Flexibility
Admissions
Rationale for Opinions
When the Expert Opinion Was Formed
Other Experts
5.5 INTERROGATORY ANSWERS
5.6 FACTUAL BASIS OF AN OPINION
Equipment and Testing
Thoroughness
When the Case Was Accepted
5.7 METHODOLOGY
5.8 BIAS
Impartiality
Inflexibility
Personal/Social Relationship with Party/Attorney
Professional Witness
Advocate
Fees and Compensation
Financial Interest in the Case
5.9 IMPEACHMENT WITH INCONSISTENCIES
Inconsistent Prior Sworn Testimony
Prior Mistaken Deposition Testimony
The Expert’s Writings
5.10 CONCLUSION

Chapter 6 Deposition Advice for Expert Witnesses
6.1 INTRODUCTION AND EXECUTIVE SUMMARY
6.2 GENERAL ADVICE FOR EXPERTS AT DEPOSITIONS
Tell the Truth
Prepare
Do Not Have the Deposition in Your Office
Dress Appropriately if the Deposition Is Videotaped
Avoid Arguing with Counsel
Make Drawings with Extreme Care
Don’t Exaggerate, Speculate, Guess, or Estimate
Listen to the Entire Question before Answering and Insist on Finishing Your Answers
Actively Listen to the Question
Pause before Answering
Reading and Signing
Do Not Respond to Counsel’s Pregnant Pauses
Avoid Gesturing
Don’t Show Weakness
Listen Carefully to Objections, But Don’t Get Involved in Disputes between Counsel
Don’t Get Burned “Off the Record”
Knowing the Facts Cold
Be Rested and Alert
6.3 PROTOCOL FOR ANSWERING DEPOSITION QUESTIONS
6.4 PROPER DEMEANOR AT DEPOSITION
Exude Confidence
Remain Calm, Cool, and Collected
Maintain Control
Avoid Sounding Arrogant
Act Naturally
Avoid Jokes and Sarcastic or Inappropriate Remarks
Act Dignified and Polite
Do Not Be Argumentative
Don’t Lose Your Temper
6.5 ADVICE ON ANSWERING QUESTIONS
Carefully Listen to and Answer the Questions
Avoid Absolute Words
Don’t Elaborate or Volunteer
Use Hedge Words with Care
Make Concessions Gracefully
“I Don’t Know”
“I Don’t Recall”
Answer Only Questions You Understand
Do Not Lock Yourself Down or Commit to the Future Unnecessarily
Do Not Ramble
Beware of Open-Ended Questions
Avoid Slang
Watch for Counsel’s “Bumble and Fumble” Gambit
“Yes” or “No” Responses
Correct Misstatements as Soon as Possible
Watch Out for the Word “Hoping”
Don’t Be Tricked into Speculating
Force Counsel to Explain Ambiguous Questions
Break Opposing Counsel’s Momentum
Encourage Opposing Counsel to Lose His Cool
Use the Clock to Your Advantage
Do Not Testify Beyond Your True Area of Expertise
6.6 CONCLUSION

Chapt r 7 Understanding and Defeating Counsel’s Deposition Tactics
7.1 INTRODUCTION AND EXECUTIVE SUMMARY
7.2 TACTICS EMPLOYED BY OPPOSING COUNSEL
7.3 CONCLUSION

Chapter 8 Setting and Collecting Your Fee
8.1 INTRODUCTION AND EXECUTIVE SUMMARY
8.2 SETTING AND COLLECTING ONE’S FEE
Who is responsible for paying the expert’s fee?
How much can the expert charge?
What can the expert charge for?
Should time spent at depositions be billed at a premium rate?
How are fees collected?
What is a wise cancellation policy?
8.3 CONCLUSION

Chapter 9 Videotaped Depositions
9.1 INTRODUCTION AND EXECUTIVE SUMMARY
9.2 USE OF VIDEOTAPED DEPOSITIONS
Impact of Videotaped Depositions
9.3 RULES AND PROCEDURES
Notice of Videotape
9.4 LOOKING GOOD FOR THE CAMERA
Camera Shots and Angles
Lawyer Tactics
9.5 USE OF VIDEOTAPED DEPOSITIONS FOR IMPEACHMENT
9.6 HOW TO EXCEL DURING VIDEOTAPED DEPOSITIONS
9.7 CONCLUSION

Chapter 10 Handling Abuse
10.1 INTRODUCTION AND EXECUTIVE SUMMARY
10.2 REFUSAL TO PREPARE EXPERT
10.3 ABUSIVE QUESTIONING
10.4 REPETITIVE QUESTIONS
10.5 HOSTILITY
10.6 PERSONAL ATTACKS: DEMEANING AND SARCASTIC REMARKS
10.7 NON-PAYMENT OF FEES
10.8 WASTED TIME
10.9 PROVIDING AN UNCOMFORTABLE ENVIRONMENT
10.10 THREATS OF OPPOSING COUNSEL
10.11 LACK OF BREAKS
10.12 CONCLUSION

Chapter 11 Truthfully and Artfully Answering Trick and Difficult Questions at Deposition
11.1 INTRODUCTION AND EXECUTIVE SUMMARY
11.2 TRICK AND DIFFICULT DEPOSITION QUESTIONS
11.3 CONCLUSION

Chapter 12 Sample Annotated Expert Deposition Transcripts
12.1 INTRODUCTION AND EXECUTIVE SUMMARY
12.2 SAMPLE ANNOTATED MEDICAL EXPERT TRANSCRIPT
12.3 SAMPLE ANNOTATED TECHNICAL EXPERT TRANSCRIPT

Appendix A FRCP Rule 26. General Provisions Governing Discovery; Duty of Disclosure
Appendix B FRCP Rule 30. Deposition upon Oral Examination
Appendix C An Example of Abusive Behavior Sanctioned by the Court
Appendix D An Example of Obstructive Behavior by Retaining Counsel Sanctioned by the Court
Appendix E Sample Schedule from Subpoena Duces Tecum
Appendix F Sample Notice of Deposition
Appendix G Example of Deposition Errata Sheet
Appendix H Expert Deposition Preparation Checklist  


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