Most civil cases today involve the use of testifying experts to address both liability and damages issues. The presence of experts has become so pervasive that modern trials are now often viewed as a “war of experts,” and motion practice regarding Daubert or the state equivalent test of admissibility of expert opinion is a regular step in the pre-trial process. This article provides a checklist for preparing for deposition, to ensure the expert witness can successfully navigate the special challenges he or she may confront.
Vet experts early. Experts normally must be designated well before their report is submitted and the deposition noticed. Keep in mind that the expert must be able to make difficult concepts simple and be comfortable using visuals to illustrate testimony. In the expert’s report, as well as in deposition testimony, the expert must demonstrate mastery of the relevant case facts, data and documents, and the ability to link the opinions expressed to them.
The expert, like any witness no matter how experienced, must be well prepared for the deposition. Frequent and in-depth rehearsals, including a substantial mock deposition, are key to instilling self-confidence and achieving success.
The expert must also be prepared to address the adversary party’s expert report in depth, to concede unimportant points or where common agreement might be found, to compare and contrast differences in methodology, assumptions and results, and to support his or her conclusions as the correct or better view of the issue in dispute.