Although it may not be granted, you should request a convenient day, time, and place, including your office if you prefer, for your deposition. Some hospitalists prefer to have the deposition at their office because it minimizes the time they are unable to engage in patient care. Other hospitalists prefer to be in a more private setting, such as the opposing counsel’s law firm office, so that their patients are not aware of their expert witness activities.
Typically, the deposition takes place at an attorney’s office, with the attorneys for the parties, the parties themselves, and a court reporter present. The deposition begins with the court reporter swearing in the expert witness so that all of the expert’s answers are under oath.
At the deposition, it is the expert’s job to tell the truth briefly. Telling the truth briefly means providing accurate answers to questions after they are understood—and clarified if necessary—and stating those accurate answers in as short a way as possible without unnecessary adverbs, adjectives, parentheticals, footnotes, asides, qualifications, and other unrequested information. The rule of thumb is that the more information an expert volunteers, the longer the deposition and ability to cross-examine will be.
Often it is helpful to engage in role playing with the attorney to explore likely initial and follow-up questions from opposing counsel. Typically, the format of these questions will include who, what, when, where, why, how, tell us, describe, or explain. You should also review important documents, so that you have a familiarity and comfort with the documents considered part of your analysis and are prepared to interpret them and explain their significance.
At the deposition, you will likely be asked if you reviewed any documents in preparation and, specifically, which ones you examined.
Just as you would in a trial situation, you should pause after a question is asked, to allow your attorney to make an appropriate objection to the question.
It should be noted that the top six answers to most deposition questions are:
- Yes;
- I don’t know;
- I don’t remember;
- I don’t understand the question; and
- I need a break.
Don’t be afraid to answer “yes” or “no” to a yes or no question or to use “I don’t know” when it’s the most accurate answer. The last piece of advice for depositions is to remember at all times that the deposing attorney is not your friend.
Trial Testimony
Getting ready for trial will be much the same as preparing for the deposition; you want to ensure that your testimony is consistent and protect yourself from potential impeachment. The focus, however, is a different audience; you are educating the judge and jury in a way that will make your testimony understandable and consistent with the jury’s common sense.
You will again be sworn in during both direct and cross-examination. If there is an objection to the form of the question or to your testimony, you should again stop and wait for the judge to instruct whether or not to answer the question and in what manner. Direct examination is likely to include questions based upon your qualifications, methodology, basis or assumptions, and anticipated cross. In responding, remember to look directly at counsel while the question is being asked and then at the jury in explaining the answer.
There is no question that serving as an expert witness is challenging and rewarding work. Are you ready for the challenge?