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How to Prepare Your Expert Witness for Deposition

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376 Page Text

The in-depth easy to use guide for attorneys preparing an expert witness for deposition:

• Practical, bullet point advice 
• What your expert will be asked and why it will be asked 
• Over 500 sample deposition questions 
• Proven methodology and techniques that lawyers can use to get thier expert witness ready for their depositions  
• Over 35 Tactics your expert can expect with suggestions to defeat each

Practical and insightful topics:
• What is my expert witness likely to be asked at deposition?
• How attorneys can quickly train their expert to be a better listener
• What attorneys should explain to their experts about deposition procedure
• How and why lawyers should suggest that thier expert witness prepare and study on his own for deposition 
• What are the most common costly mistakes experts make time and again and how attorneys can prepare their experts to avoid these
• How attorneys should prepare their expert for set-up questions for Daubert and qualifications challenges
• Where time is limited, how should I prepare my expert quickly and efficiently?
• What key facts and information does my expert need to know cold?
• Simple ways attorneys can build the confidence in an inexperienced expert witness

Table of Contents

CHAPTER 1 
EXECUTIVE SUMMARY 
1.1  OVERVIEW OF EXPERT WITNESS DEPOSITION PREPARATION 
1.2  EXPLAIN DEPOSITION LAW AND PROCEDURE TO YOUR EXPERT WITNESS 
1.3  EXPLAIN THE LIKELY STRATEGIES AND GOALS OF OPPOSING COUNSEL 
1.4  PROVIDE ADVICE ON HOW TO BEST PERFORM AT DEPOSITION 
1.5  PREPARE YOUR EXPERT WITNESS TO EXCEL ON VIDEO 
1.6  MAKE SURE YOUR EXPERT WITNESS RECOGNIZES WHAT COUNSEL IS LIKELY TO ASK 
1.7  PREPARE YOUR EXPERT FOR COUNSEL’S TACTICS 
1.8  PREPARE YOUR EXPERT FOR TRICK AND DIFFICULT QUESTIONS  

CHAPTER 2 
OVERVIEW OF HOW TO PREPARE YOUR EXPERT WITNESS FOR DEPOSITION 
2.1  INTRODUCTION AND EXECUTIVE SUMMARY 
2.2  INVESTING IN PREPARATION 
2.3  OBTAIN PAST DEPOSITION TRANSCRIPTS 
2.4  TIME AND PLACE OF THE DEPOSITION 
2.5  ORIENTING YOUR EXPERT WITNESS 
     Housekeeping 
     Law and Procedure 
     The Likely Goals of Opposing Counsel 
     General Advice 
2.6  AREAS OF CONCERN: COUNSEL 
2.7  AREAS OF CONCERN: EXPERT 
2.8  MOCK DEPOSITION
2.9  EXPLAIN HOW YOUR EXPERT SHOULD PREPARE ON HIS OWN 
     The Facts of the Case 
     Review Important Dates 
     Know CV Cold 
     Know Their Report Cold 
     If Your Expert Did Not Write a Report 
     Your Expert’s File 
     Know How Much They Have Been Paid 
     Questions Counsel Is Likely to Ask 
     The Expert’s Opinions 
2.10  CONCLUSION  

CHAPTER 3 
WHAT YOU SHOULD MAKE SURE YOUR EXPERT WITNESS KNOWS ABOUT DEPOSITION LAW AND PROCEDURE 
3.1  INTRODUCTION AND EXECUTIVE SUMMARY 
3.2  DEPOSITION BASICS 
     Recording of Depositions 
     Videotaped Depositions 
     The Standard or Usual Stipulations 
     Reading and Signing the Deposition Transcript 
3.3  DEPOSITIONS ARE A COMPONENT OF THE DISCOVERY PROCESS 
3.4  PRIVILEGE AND WORK PRODUCT 
3.5  OBJECTIONS 
3.6  CONCLUSION 

CHAPTER 4 
HOW TO EXPLAIN THE STRATEGIES AND GOALS OF OPPOSING COUNSEL TO YOUR EXPERT 
4.1  INTRODUCTION AND EXECUTIVE SUMMARY 
4.2  UNDERSTANDING HOW OPPOSING COUNSEL WILL PREPARE FOR THE EXPERT DEPOSITION 
4.3  HOW COUNSEL’S DEPOSITION AND TRIAL QUESTIONING TECHNIQUES DIFFER 
4.4  GOALS 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 Your Expert to Help Opposing 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 Motion to Disqualify the Expert or Throw Out His Opinion 
4.5  CONCLUSION 

CHAPTER 5 
DEPOSITION ADVICE FOR YOUR EXPERT WITNESS 
5.1  INTRODUCTION AND EXECUTIVE SUMMARY 
5.2  GENERAL ADVICE FOR EXPERTS AT DEPOSITIONS 
     Tell the Truth 
     Prepare 
     Do Not Have the Deposition in Your Expert’s 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 
5.3  PROTOCOL FOR ANSWERING DEPOSITION QUESTIONS 
5.4  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 
5.5  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 
5.6  CONCLUSION 

CHAPTER 6 
IMPROVING HOW YOUR EXPERT APPEARS ON VIDEOTAPED DEPOSITIONS 
6.1  INTRODUCTION AND EXECUTIVE SUMMARY 
6.2  USE OF VIDEOTAPED DEPOSITIONS 
     Impact of Videotaped Depositions 
6.3  RULES AND PROCEDURES 
     Notice of Videotape 
6.4  LOOKING GOOD FOR THE CAMERA 
     Camera Shots and Angles 
     Lawyer Tactics 
6.5  USE OF VIDEOTAPED DEPOSITIONS FOR IMPEACHMENT 
6.6  HOW EXPERTS CAN EXCEL DURING VIDEOTAPED DEPOSITIONS 
6.7  CONCLUSION 

CHAPTER 7 
WHAT YOUR EXPERT WITNESS CAN EXPECT TO BE ASKED 
7.1  INTRODUCTION AND EXECUTIVE SUMMARY 
7.2  QUALIFICATIONS 
7.3  CURRICULUM VITAE 
     Web Page 
7.4  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 
7.5  INTERROGATORY ANSWERS 
7.6  FACTUAL BASIS OF AN OPINION 
     Equipment and Testing 
     Thoroughness 
     When the Case Was Accepted 
7.7  METHODOLOGY 
7.8  BIAS 
     Impartiality 
     Inflexibility 
     Personal/Social Relationship with Party/Attorney 
     Professional Witness 
     Fees and Compensation 
7.9  IMPEACHMENT WITH INCONSISTENCIES 
     Inconsistent Prior Sworn Testimony 
     Prior Mistaken Deposition Testimony 
     The Expert’s Writings 
7.10  CONCLUSION 

CHAPTER 8 
UNDERSTANDING AND DEFEATING COUNSEL’S DEPOSITION TACTICS 
8.1  INTRODUCTION AND EXECUTIVE SUMMARY 
8.2  DEPOSITION TACTICS TO PRACTICE WITH YOUR EXPERT 
8.3  CONCLUSION 

CHAPTER 9 
SAMPLE TRICK AND DIFFICULT QUESTIONS TO ASK YOUR EXPERT WITNESS DURING YOUR PREPARATION SESSION
9.1  INTRODUCTION AND EXECUTIVE SUMMARY 
9.2  SAMPLE QUESTIONS 
APPENDIX A  SAMPLE EXPERT DEPOSITION CRITIQUES 
APPENDIX B  POTENTIAL DEPOSITION AREAS OF INQUIRY FOR YOUR EXPERT WITNESS  INDEX 
 

 

About the Authors
James J. Mangraviti, Jr., Esq. and Steven Babitsky, Esq., are frequently called by experts, their employers, and retaining counsel to train and prepare individual expert witnesses for upcoming testimony. They are former litigators who currently serve as Principals of the expert witness training company SEAK, Inc. (www.testifyingtraining.com).  Mr. Mangraviti and Mr. Babitsky are the co-authors of numerous texts on expert witnessing, including: How to Become a Dangerous Expert Witness: Advanced Techniques and Strategies; The A–Z Guide to Expert Witnessing; Depositions: The Comprehensive Guide for Expert Witnesses;; Writing and Defending Your Expert Report: The Step-by-Step Guide with Models; and The Biggest Mistakes Expert Witnesses Make: And How to Avoid Them; and are the co-founders of SEAK’s Expert Witness Directory (www.seakexperts.com).

   babitsky-thumb.jpg  mangraviti-thumb.jpg

 What people have to say about this book:

"As someone who has taken numerous seminars and workshops with them, I can say with the utmost confidence that James and Steven are the absolute best in the business when it comes to helping expert witnesses sharpen their skills. Whether you're just looking to cover the basics or want to improve your game with advanced techniques, their services are an invaluable investment in making yourself a more effective expert witness.  Granted, not everyone has time for workshops, which makes this book an excellent alternative. As should be expected from the authors, it's brimming with useful strategies and tips for becoming an indispensable asset to attorneys. The examples are great; the techniques are highly applicable; and the writing is incredibly accessible--I cannot recommend this book enough. " 

Patent Expert
Berkeley, CA

 

"...Excellent... Well organized and contains a great deal of practical advice."

Christopher Gibbons Esq.
Chicago, IL

 

“This book is an excellent representation of SEAK’s commitment to their clients.  The sheer number of real-world examples and relentless focus on proper preparation techniques is not hollow rhetoric or cliché nonsense.  Having experienced SEAK’s preparation in an intellectual property case with millions of dollars on the line, I am confident that the techniques explained in this book—techniques Steve used in our two-day prep session—transformed my expert.  This information can keep your expert witness from being the reason you ose your case, because if you follow the outlines Steve and James lay out, you will be properly equipped to prepare your expert for deposition.”

Decker Cammack, Esq.
Fort Worth, TX

 

“The authors' new book likely establishes the lawyer's "standard of care" in terms of deposition preparation.  Comprehensive in scope, meticulously edited, and flawlessly crafted, Mssrs. Mangraviti and Babitsky have produced an essential addition to every litigator's library.”

Judge David Torrey
Pittsburgh, PA

 

“It is rare to come across a book with practical advice and concrete examples of tough questions posed to expert witnesses, but this book has both. A great resource for novice or experienced experts and attorneys alike.”

Maren Cave, Esq.
Atlanta, GA

 

“The authors present not only a useful set of outlines for preparing expert witnesses to give testimony, they also include examples from depositions to see how it works. Experienced lawyers, as well as young lawyers, will benefit from the insights provided in this text.”

Donald Slavik, Esq.
Newport Beach, CA

 

“A great resource for the practitioner that is prepping his first or thousandth expert.”

Roy DeCaro, Esq.
Philadelphia, PA

 

“This book is as comprehensive a source as can be found on expert preparation and covers nearly every conceivable issue that might arise in an expert deposition.  Whether you are preparing your first expert or your thousandth, this book will take your expert preparation to the next level.”

Lisa O’Donnell, Esq.
Norfolk, VA

 

“Rarely do I read these types of books as I think I “know it all.” Obviously, I do not. I love it.”

Jeffrey Kroll, Esq.
Chicago, IL

 

"Anyone who works with expert witnesses should have a copy of “How to Prepare Your Expert Witness for Deposition” at their fingertips.  Both attorneys and experts will benefit from using this guide to ensure the expert excels during their testimony.   

The book is based on the authors’ vast experience training thousands of expert witnesses over the past 22 years.  It is written in easy to understand language with hundreds of real-world deposition scenarios. With each example, there is a concise “Practice Pointer” which provides a recommendation on how questions should be approached and answered. Each chapter includes bullet-pointed executive summaries to enable the reader to find the bottom-line advice quickly.

As civil cases are highly dependent upon expert testimony, and most cases settle, the expert deposition takes on great importance.  The authors point out that the settlement value of a case is likely closely correlated with how well an expert witness prepares for deposition.  In the Chapter “Overview of How to Prepare Your Expert Witness for Deposition,” it is advised not only to get an expert’s past depositions to review, but to also obtain old transcripts of opposing counsel.  In reviewing past depositions taken in a medical malpractice case, the authors were able to list the fifteen formulations of questions used by the opposing attorney.   Knowing how the opposing attorney conducts a deposition allows the expert to prepare for questions phrased in a particular way. 

In the book, emphasis is placed on how to prepare for the vulnerabilities and issues facing the expert.  Identifying areas of concern will help the expert focus their limited time on the most important and likely issues to come up at deposition.  The authors provided specific Q & A examples on how to handle questions about these areas.  

It is important that an expert witness understand the strategies and goals of opposing counsel.  Here, the book lets the expert “behind the curtain” to reveal how lawyers can ask pointed questions to lock down an expert, discover factual assumptions, establish bias, and to try to intimidate the expert. This book also covers how counsel’s deposition and trial questioning techniques differ, to give the expert an insight on what they might face at each type of proceeding.

An expert’s deposition is also a performance.  Opposing counsel will be sizing up the expert to how he or she handles tough questions.  As such, the chapter on “Deposition Advice for Your Expert Witness” is a virtual checklist of items for retained counsel to discuss with their expert.  Perhaps one of the most important pieces of advice is for the expert not to argue with counsel, as this can make the expert appear to be an advocate.  As pointed out by the authors, experts who get emotional frequently stop thinking clearly about the questions and the answers. 

Videotaped expert witness depositions provide unique challenges that should be addressed by retained counsel.  Besides the expert’s responses, an expert must also be concerned about their appearance, and the manner in which they answer the questions.  The authors give specific tips on how experts can excel during videotaped depositions, including how to deal with nonverbal behavior. 

The core of the book focuses on what the expert can expect to be asked, understanding and defeating counsel’s deposition tactics, and sample trick and difficult questions.  Here the book provides detailed, specific questions along with proposed answers, and the lesson from answering the question in that manner.  The topics are arranged alphabetically, making reference easy for both attorneys and experts.  For example, in the section on how to respond to questions about fees, the authors provide 25 variations of questions and well-reasoned answers regarding this subject.   

The authors point out that even experienced experts fall into bad habits that can adversely affect their deposition performance.  Most lawyers do not take the time to review transcripts of the experts.  However, insight can be gained about the expert’s strengths and weaknesses by evaluating prior transcripts.  The book helps in this regard by including in the appendix sample deposition critiques.

The final appendix contains a sixteen-page list of questions that every expert witness should be prepared to answer.  The questions concern topics such as expert witness advertising, methodology, and opinions about other experts.  Using the tips in this book, expert witnesses will know how to effectively answer each of these questions.

Former UCLA basketball coach John Wooden once said: “Failing to prepare is preparing to fail.” This book operates on the same philosophy. By using the techniques in this book, attorneys will know how to effectively prepare their expert witnesses for their deposition.  Indeed, experts themselves will gain a great advantage learning these skills prior to their deposition.   Knowing how to prepare is the first step to a successful expert witness deposition." 

Jim Robinson, Esq.
Hermosa Beach, CA

 

“Too often we trial lawyers assume our retained experts not only know their areas of expertise, but are also expert witnesses who don't need to be prepared for deposition.  Every trial lawyer has made this mistake at least once.  This book reminds us that being a good expert is not just about knowing the subject matter.  Filled with helpful guidelines and examples, "How to Prepare Your Expert Witness for Deposition" is an invaluable guide to making sure our experts perform well as witnesses.”

Michael Warshauer, Esq.
Atlanta, GA

 

“Your book "How To Prepare Your Expert Witness For Deposition" in an innovative approach provides practical insights into the neglected art of preparing experts on how to give solid deposition testimony. The techniques and sample questions have application for seasoned experts and senior trial attorneys as well as those preparing for their first deposition. The book is a must read if your expert is to be perceived as an "A List" forensic expert and not a hired gun.”

Jean Niven, Esq.
Tampa, FL
 


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