How to Deal With Attorney Questioning of Expert Witnesses That Constrain Your Answers
Opposing attorneys can utilize a number of methods during depositions to limit your value at a possible trial. In a deposition, they can ask you to list everything you know about a particular subject, or all the possible ways you know that something could have occurred. It doesn't matter whether you list three or 13 items in response, the possibility remains that you may not think of everything at that moment. If you do not suggest a flexible answer, you may not be allowed to expand upon the list during a later trial.
Whenever you attempt to answer such a list-related question, end your answer with: "that's all I can recall at this moment." That allows you to bring up additional list items later.
Another approach is to ask for only some of your opinions at the starting of a deposition. If they do not explicitly ask for all of your opinions, and you do not enunciate all the opinions that you wrote in your report, you may not be allowed to express them in trial on the legal grounds that you did not say them during your deposition. Your best approach is to come to your deposition knowing exactly how many opinions you want to express, and the bases and foundation for those opinions. At some point during the deposition, you can specifically present those opinions. For example, you may be asked:
Q: Do you have an opinion in this matter?
A: I have four opinions in this matter. My first opinion is...
You now have the floor to continue with additional opinions. You do not have to say anything beyond your specific opinions until and unless the lawyer asks you for the bases of those opinions. You will have the opportunity to provide additional aspects if the case goes to trial.
For example, attorneys will try to ascertain how much time you spend in your industry. A question such as "how much of your time is spent as an expert witness?" is common. If your answer is only 5, 10 or even 25%, then your answer is fine. If the percentage is higher than that, the attorney will make it sound as if you are no longer really an expert or a professional in your field, and that you are no longer in tune with your own science or specialty.
It may well be that you only spend a small percentage of your overall time as an expert witness. When you list other things that you do with your life both professionally and personally, it will be clear that you are not just a "selected gun."
The reality is that as you spend more time as an expert witness, you may earn a disproportionate percentage of your overall income doing so. Being an expert witness occasionally becomes a main job for those who have retired from their specialty and yet are both wonderful and productive at being an expert witness.
Avoid being trapped into answering questions about expert witness work in terms of percentage of dollars. Answer in terms of what other things you do with your time.
It comes across better if you are doing other things professionally in your life. If you still have a job and work full time, then there is no problem - expert witness roles will only happen once in a while and you will work them into the rest of your professional schedule. If you are an entrepreneur and have control over the way in which you spend your time, then a successful practice as an expert witness may take on a growing role in your overall work life.
Attorneys often try to get you to paint yourself into a smaller corner of your shared specialty than the other side's expert, who you likely will know from networking or simply working in the same industry. A favorite technique of opposing attorneys is to ask you casually if you are familiar with their expert. They might use words like 'familiar' or ask you directly what you know of the other expert's reputation in your mutual field. The lawyer is seeking your aid in qualifying his expert. That is not your job; that is his job. A polite response about being familiar with the expert should be enough. Do not go overboard with praise, because that will lend extra credence to whatever testimony the other expert later offers.
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Legal maneuvering begins much earlier than the trial itself. lawyers frequently file arguments or motions to the judge in almost every case. During the deposition, your own lawyer will occasionally object to a question. A phenomenally important piece of guidance is: Stop talking if your retaining attorney makes an objection. Get into the habit of pausing for one to two seconds before you begin any answer. This pause helps your attorney because it gives him the time and the opportunity to object
Attorneys may attempt to discredit you in both personal and professional ways. You will learn here what sort of testimonial questions are used to attempt to discredit you, and you will receive some guidance on how to best handle those sort of questions.
The strength or weakness of both sides of the case depends not only on the facts in the matter, but on the expert's ability to present analyses and opinions to the 'triers of fact.' figure out the reality behind attorney questions and understand more aspects about the goals of the opposing counsel and the effects of your testimony in that setting.
Find out in advance the mechanics of an expert witness deposition. What are they like and where are they held? What should you bring and how does a Court Reporter play into the process? I address these facts and a few pieces of guidance for you before going into the deposition room.
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I review the most frequently mentioned guidelines for reliable expert witness testimony. I also add a few special tips from my own experiences since 1986 as an expert witness.
Nearly no expert witness realizes and appreciates the true dangers to themselves during cross examination. experience occasionally breeds a sense of immunity to danger. But playing with words --- usually your words --- is the experience of attorneys. learn here how to counter that skill in advance with your own new knowledge of how best to succeed as a credible expert in the context of a trial.
It's one thing to decide what to prepare for use as a demonstrative exhibit during trial testimony. It's another thing, and the subject of this short article, to know how to effectively use those exhibits to Enhance your presentation and help to make the points you want with the jurors, in support of your opinions.
You don't give expert witness testimony in a vacuum. You want and need the jury to initial know and then agree with what you have to say. Here are my most practical suggestions for behavior, technique, and verbiage for getting the jury to accept, believe, and rely on what you are saying.
Most of us want to win games that we play. As an expert witness, there are psychological as well as physical and mental games you can play to help you win approval from the jury and success with your opinion presentations. Read here to find out what those are.
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