How to Deal With Lawyer Questioning of Expert Witnesses That Limit Your Answers
Posted: Sunday, November 07, 2010
by Judd Robbins
Presentation Dynamics
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 propose a flexible answer, you may not be allowed to expand upon the list during a later trial.
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 initial opinion is...
You now have the floor to continue with additional opinions. You do not have to say anything beyond your particular opinions until and unless the lawyer asks you for the bases of those opinions. You will have the opportunity to provide additional details if the case goes to trial.
Attorneys like to make the jury dislike or disrespect you, thereby making it less likely that they will accept what you have to say regardless of your findings or the quality of your work. Many questions are attempts to reduce the jury's opinion of you in one way or another, even before you have a chance to express any opinions of your own about the issues in the case.
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 lawyer 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 discipline.
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 "hired 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 primary job for those who have retired from their specialty and yet are both great 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 part 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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