Tips For a Successful Expert Witness Deposition

The media usually portrays expert witness testimony as a dramatic event where the case is decided in a high-stakes stand-off. While it’s true that this testimony usually has a great impact on the case, things are a bit different in real life.

The most important event usually takes place outside of the courtroom, and it’s not as flashy, unfortunately. We’re talking, of course, about expert witness deposition.

You can never be too prepared. That’s why we decided to give you a few tips and pointers on putting together an expert deposition outline, so you can knock this step out of the ballpark and ensure a victory for your client.

But first, let’s brush up on some law school knowledge!

What are depositions?

During the discovery process, all parties gather information on the evidence and the witnesses that will be presented at a trial. An integral part of this process is depositions, sworn testimonies that take place outside of the courtroom. 

In depositions, both parties will get their opportunity to question the expert witness of the opposing counsel.

Usually, these are conducted orally and recorded electronically, although it is possible to conduct a deposition with written questions. This particular method involves submitting the written questions in advance. Even though this method is cheaper as the counsel doesn’t have to attend the deposition in person, you lose the opportunity to ask ad-hoc and follow-up questions.

Now that the definitions are out of the way, let’s get down to business. Here are a few tips you’ll find helpful while preparing for a deposition and putting together an expert deposition outline.

Prepare your expert deposition outline

One of the main principles of depositions is extensive preparation. While this isn’t always possible due to different circumstances such as late disclosures by the opposing party or condensed discovery schedules, you should still start preparing as soon as the expert witness is disclosed by the opposition.

To prepare an expert deposition outline that contains all the right topics and subtopics you’ll want to explore and questions you’ll want to ask, you have to dig for a lot of information first. You should look into the following:

1. Expert’s publications

A quick Google search can lead you to a profile of the expert where they list all their publications. If that’s not the case, you might be able to find a lot of information with research portals.

For instance, you can dig up any materials, academic articles, or books that the expert might have written. 

While this will likely take a lot of time, especially when it comes to sorting out what’s relevant to your case, it’s a natural part of preparing an expert deposition outline. We recommend that you put together a list of high-priority material and ask another team member for help in sifting through everything.

2. Prior testimony

During discovery, you can usually get your hands on a list of motions or actions where the expert has previously testified. This allows you to determine whether the expert has an already established relationship with the opposing counsel, as well as if they usually testify for the defense or the plaintiffs.

You can find the transcript of their testimonies through Westlaw, LexisNexis, or by using a service such as IDEX. 

If push comes to shove, flex your networking muscles and reach out to attorneys who were involved in those cases.

Once you are in possession of the transcripts, you’ve got a monumental task at hand. Try to discover if any of the previous testimony reveals any inconsistencies in the one related to your case.

3. The expert’s background

Finally, as a part of your ‘’sleuthing’’ process, you should look into the background of the expert. You will be surprised by what you can find online just by searching through expert witness listing services, reporting services, and even social media. 

Make sure to take your research offline and ask other attorneys and experts from the same field about the expert hired by your opposing counsel.

4. Pro tip: Involve your own expert

While crafting an expert deposition outline, you should also involve your expert in the process. 

Why? 

Quite simply, your own specialist  could help you spot issues with the opposing expert’s report that you might have overlooked. 

If possible, schedule an in-person meeting or a video conference with your expert so they can walk you through the report and point out any problem areas you might want to investigate further. They might even help you come up with questions you can ask at the deposition. 

Organizing an expert deposition outline

While acquiring the information we listed will give you everything you need to put together an expert deposition outline, you might be able to take it further by supplanting the information with other useful tools,

For instance, you can master the facts of the case a lot easier if you put together a timeline. Depending on the case, this might mean a timeline of product complaints pertaining to a recall. 

This also applies to organizing your files into a chart. For example, you can sort it by timeline, topic, or even the goals of the deposition. Additionally, you could group the expert’s literature by topic, or even create a chart that describes all the areas that they might testify in. 

Example questions in your expert deposition outline

Once you have all the info you need, you can start scripting out the questions you will ask the expert. 

Because you are deposing an expert witness, you shouldn’t aim to impeach or trick them. Your primary goal is to establish the basis for their opinions. Here are the questions and topics you should focus on that connect to the information you might have discovered while putting together the outline:

1. What are the qualifications of the expert

2. Do they have sufficient experience regarding the details of the case

3. If they have potential sources of bias such as a preference for testifying for the plaintiff or defense, or even the relationship between the opposing counsel and the expert

4. How much time did they put into preparing their conclusion

5. The fee arrangement of the expert

6. Every piece of opinion they will offer at the trial 

7. Assumptions and basis in reaching their conclusions

8. Information in the expert’s report

9. Details of all communication between the expert and the opposing party, including oral and written communications

Learning to improvise

Having an expert deposition outline is a valuable tool for rookie attorneys as it helps them visualize the deposition, which can be very nerve-wracking in the beginning.

While having a script (so to speak) is helpful, you shouldn’t grow reliant on it. As your experience grows and you get a few expert depositions under your belt, you should learn to make it up as you go along. In other words, learn to go off-script if needed when the expert takes you on a tangent that might need further exploration.

In a lot of ways, expert depositions are like jazz. You shouldn’t rely too much on the script and become flustered once anything that you didn’t visualize happens. Listen to the answers the expert witness gives you and fire up an improvised question on the spot. 

Other than that, good luck with your first deposition, young attorney!