subject: Knowing the Nature of the Expert Witness Deposition [print this page] Knowing the Nature of the Expert Witness Deposition
By the time the deposition comes around, the process of discovering facts in the matter has largely come to its final phase. By this point, you have probably seen much of the relevant data that has come to light. You have certainly seen the information that relates directly to the opinions you formulated. You will have contributed your own research and investigation to the discovery procedure to complete your expert report.
The deposition phase of the case usually represents the final stage of discovery. At this point, the discovery concerns more than just the facts in evidence. Behind this factual discovery is the discovery of information about you as a witness in a trial, if one occurs. The question of how efficient a witness you will be at trial lies beyond the facts, beyond the opinions that you have formulated, and beyond all the organized bases for those opinions. I have been an expert in more than 100 cases. Most of them settle or end as a result of what is acquired during the discovery phase. There's no hard number, but in my qualifications, no more than 20% of them reach the deposition phase and less than 10% reach the trial phase.
Litigation is expensive and hiring experts makes it even more costly. Both sides would like to settle if possible, and you are a major reason why they may decide to do so. If your work is strong, and you look and sound strong, you will impress the attorneys for the other side as a witness who will be believable and convincing to a jury. They may be more inclined to settle once they realize this. You are part of the discovery process. When both sides Discover how much you can help or hurt them, then you become another card to play in this metaphorical poker game.
A deposition is a legal forum in which you offer sworn testimony.
If the matter comes to trial, and you are unavailable to testify, the attorneys can use your deposition transcript in your place. They can read anything they like from it during the trial. Naturally, your smiling face and convincing personality would be preferable at trial to someone else intoning your words. However, you should realize the import of each of your words when you speak during the deposition.
A subpoena is a legal document that somebody usually delivers directly to you. The person who does that is called a process Server. occasionally, your lawyer will receive a subpoena for you. If you do obtain a subpoena directly, you should alert your attorney immediately. Either way, receipt of a subpoena constitutes a legal requirement that you appear at the scheduled deposition. Unlike a call for a meeting at work, or request that you attend a lecture, you cannot ignore a subpoena and you must be prompt. Subpoenas are not scary, but they are official.
By and large, knowing that the deposition has been scheduled should get your attention; it's show time. You have done your research. You have prepared your expert report. You have probably received some payment for your services already. Now it's time to show your mettle. The deposition provides your first opportunity to prove how great you can sound and how quickly you can think. Attorneys will be there and so will other people involved and interested in the proceeding. But you are the star.
The subpoena will list obvious facts such as your name and the names of the litigants in the case. It will list the attorneys involved, and instructions regarding the time and place where the deposition will take place. Do not panic if the time and place proposed in the subpoena conflicts with something else that is already on your schedule. This happens frequently. Simply tell your attorney that there is a conflict, and propose an alternative date for the deposition. A telephone call or two from the lawyer will rearrange a time and place that works for you and for everyone else who needs to attend your deposition.
The subpoena usually spells out in detail everything you should bring with you to the deposition. This includes your entire case file and everything you have in your possession on which you relied during the preparation of your expert report and opinions.
Bringing everything is the letter of the law, but you should consult your lawyer as to whether you need to follow the law precisely or whether you can be more Pragmatic.
You do not necessarily have to bring everything on which you relied to the deposition.
For example, the list of things you might exclude are copies of other depositions or other reports that have been filed in the case, and copies of electronic media like CDs or DVDs that you have received. The attorneys involved know these materials exist, and they now have their own copies. If the attorneys insist that you bring these things, just ship everything to the law firm and let them bring all of it to the deposition.
Bring anything in your case file that is unique, such as your notes or your invoices in the case. Also bring copies of other documents that you acquired but have not yet been submitted in the case. You can refer to them and the other attorneys will have an opportunity to question you about their contents.
