In Federal and most state jurisdictions, parties must disclose the name of their experts prior to end of the discovery period. Usually, the parties will then want to depose the experts of the opposing sides. This is done for several reasons but primarily to find out their opinions, the basis for them and to get a feel for how effective they will be.
Eighty to ninety percent of the cases settle after deposing fact and expert witnesses. While many attorneys will advise the expert not to volunteer anything and to answer as concisely as possible, it has always been my opinion that if you are careful, you should seek any opportunity to provide truthful information or opinions helpful to the side which has retained you. If you do not, the other side may feel in a stronger position during settlement than they actually should be.
There are several standard subjects about which most attorneys will ask you.
First is your background. Always bring two copies of your curriculum vitae or resume with you; one to give to the person taking the deposition and one to keep so that you will have it in front of you when you are asked questions about it or about your experience.
You will generally be asked about when you were retained, and what you were asked to do.
They will also want to see your file. Bring with you all materials except for depositions which all sides already have. Be prepared to asked questions about when you received the materials and when you read them. If you made notes at any time, while visiting the scene, reading materials or talking with people about the case, bring them. The other side is entitled to everything on which you based your opinion. On occasions, the attorney who hired you will provide you with something and then take it back . Since it isn't in your file, you can't provide it but if you are asked if you were furnished any other material, you must disclose it and then let the attorneys argue about whether or not it will be produced. That is not your concern. Sometimes this is done by having you read materials in the lawyer's office which you are never given. Answer questions truthfully and let the lawyers argue about producing of them.
You will be asked how much you charge. Experts charge in different ways but all charge by the hour plus expenses. Tell them what you charge and if the amount charged is different for testimony, make sure they understand. I usually ask for their card before we go on the record. While my Consulting Agreement holds the attorney who retained me responsible for all fees, as a courtesy to him, I will bill the attorney taking my deposition directly. If he doesn't promptly pay it, I put it on my attorney's bill. Let him or her collect. Make sure you understand what the agreement is with regard to your fees. Your attorney should tell you what to bill them; travel, accommodations, and preparation (always a questionable charge as to who pays it and other expenses associated with the deposition). If you spend an hour or so with your attorney before the deposition, charge that time to him or her.
If I am asked how much I make in a year, or other personal financial information that isn't relevant to the case, I politely refuse to answer stating that I don't consider it relevant and will only answer it if directed by a judge.
I will generally prepare an outline of things which I expect to be asked: when retained, vessel particulars, time of accident, weather if relevant, materials reviewed, opinions and in some cases, the facts which support the opinions. I let my attorney see them before I am deposed and then present a copy with my file to those taking my deposition. Don't forget to make an extra copy for yourself. Attorneys love to ask you questions about your notes while holding them in their hands where you can't see them.
You have the right to look at any materials you want while responding to questions. If you are asked if someone didn't say so and so, ask to have the deposition page and line pointed out. This is particularly important when you testify at trial. I had an attorney ask me on the stand if I hadn't said something in my deposition. He presented it out of context in hopes of impeaching me -making it appear that my testimony had changed. You are entitled to, and should have the transcript in your hand before answering such a question. Ask for it. Read the questions and answers leading up to this one and if necessary, those after. If the context of your answer is misrepresented, explain.
Depositions are usually taken in a relaxed atmosphere. An attorney may try to get you angry to see how you respond. If he can get you upset in the deposition, he will use that tactic in the trial. Your presentation will go to pieces and you will loose your effectiveness.
Don't loose your composure. If you do, the attorney asking the questions has accomplished one of his goals. Remember, you are there to tell the truth and present your opinions. If you have made a mistake, admit it and correct it. Don't try to cover it up.
In answering questions, avoid being unsure. Answers which contain, "It seems to me ..." or, "Not that I know of" would indicate that maybe you aren't an expert in the areas about which you are testifying.
Lastly, be prepared. I take a lot of time checking what each person has said about each important event. I recently read a deposition in which an attorney asked if a certain event hadn't taken place. The deponent said he didn't remember. It was a key point on which several people had testified and the expert looked poorly prepared as a result. Don't let it happen to you.
There are two ways to be prepared. Take notes on what you have read, or read the materials just before you are deposed. The problem with the latter approach is that if you discover a key issue which your attorney hasn't identified in the pleadings, he may not get it in because of time limitations. If you read the materials when you receive them and take good notes, then all you have to do is review the notes before you are deposed. Put the page and line number on which the information in your note was located.
Remember, every one has a job to do at a deposition. While you may not like the approach of the attorney taking your deposition, it isn't personal.
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