Taking Depositions of Expert Witnesses
Scott Bair, Ohio State University
Depositions are a means within the legal system of enabling both sides of a lawsuit to discover how the opinions of witnesses were formulated based on facts, data, analyses, and interpretation. In its ideal, both sides of the lawsuit learn 100 percent of what's up the other's sleeve. In reality, it is a private game of hide and seek with the witness being tested to see if she or he can be provoked into a display of temper or arrogance, whether the witness is likely to be the equivalent of 'Mr. Peepers' on the witness stand, or whether the witness is likely to be competent, concise, and coherent. Just like writing an expert report, you do not want to teach the opposing attorneys during your deposition. You should give very succinct answers to the questions and then stop. Let them dig.
I've been deposed a dozen times or so. Although I enjoy the mental challenge of strict Socratic questioning, depositions are more difficult than trials because there is no judge or jury to ensure that the opposing attorneys behave with decorum. During deposition your attorney has to sit quietly without giving advice, although he or she can object to certain questions or forms of questions. As on the witness stand in the courtroom, during deposition you are alone, armed only with your brain and your preparation. Have your students come prepared.
One of the common techniques used by attorneys to elicit information that you have be holding back or information that is critical to the trial is to ask the same question in a variety of ways. This is a tactic that has worked well during the depositions for our mock trials.