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January 24, 2013

Even Experienced Expert Witnesses Must Prepare for a Deposition

How well a lawyer prepares an expert witness for deposition has a critical influence on the outcome of a case, said Steven Babitsky, an attorney and president of SEAK Inc., a provider of expert witness training.

“As a litigator, it’s your responsibility to prepare your expert witness adequately,” he said. “There are many things outside of your control: the judge, timing, plaintiffs and defendants, people with all kinds of personal issues. One thing you can control is preparation of your expert witness.”

When you prepare your expert witness well, you’ll enjoy the rewards, said Babitsky in a webcast on preparing expert witnesses for deposition. The webcast was sponsored by the _ Section of Litigation, Young Lawyers Division, Solo, Small Firm and General Practice Division, Section of Intellectual Property Law, the Criminal Justice Section and the Center for Professional Development.

“We see dramatic improvement after one day of preparation,” Babitsky said. “We can take a C student to a B or a B-plus after an eight-hour session.”

It is a mistake to assume that because a witness has testified before that he or she doesn’t need to be prepared, he said. Conduct a mock deposition with your expert.

“What we have found by working with experts and looking at their deposition transcripts is that many times the expert will make the same mistake over and over again,” Babitsky said. “So the time spent preparing an expert witness is a good investment of your time and the client’s money.”

Reviewing an expert’s deposition transcripts will allow you to quickly identify past performance issues, Babitsky said. Issues could include poor listening, joking during the deposition, interrupting counsel and using the word guess or guestimate. “You need to go over with them how much to talk and when, and should they expound in certain areas or should they keep it short and move on,” he said.

Because a lawyer has some flexibility with scheduling the deposition, aim to schedule for a favorable time and location, said James J. Mangraviti Jr., an attorney and principal of SEAK. “Pick a time when the expert is likely to be fresh and come well-prepared,” he said. “If the expert is an early morning person, don’t start the deposition after work at 5 p.m.”

The expert should not give the deposition in his or her office, Mangraviti said. There is a distraction factor. “The secretary may give them bad news, which discombobulates them,” he said.

Go over “housekeeping details” with the witness, which he or she is often worried about, Mangraviti said. “Take away as much worry as possible,” he said. Make sure the witness knows where to park and how to dress, for example.

“Your job is to explain that the lawyer on the other side … can ask you pretty much anything,” Mangraviti added, and the witness should “just answer the question, so concentrate.”

The lawyer should also explain to the witness that the choice and expression of those words can make a difference. “You need to stress that they [should not seem] evasive or arrogant,” Mangraviti said. “How you look is really important.”

Experts also need to be able to justify their reliability and why they’re well qualified in bullet-point fashion, Mangraviti said. “These are the five reasons I’m qualified,” he said.

Some witnesses have a fear of saying I don’t know or I can’t remember, he added. “Stress that it’s OK if it’s a truthful answer to say I don’t know or I don’t remember,” Mangraviti said.