Staying cool in the deposition hot seat

Don’t let your performance suffer as an expert witness during a deposition because of an overbearing attorney asking the questions. Here are tips on how to keep your cool and do a great job for your client.

It’s your time to testify in a court deposition as an expert witness for the defense in an embezzlement case. You enter a conference room and take your seat. The counsel for the plaintiff immediately attacks your credentials. He then aggressively starts firing off questions; his tone becomes louder, and he starts speaking faster as if he’s actually angry with you. But you don’t worry. You’re prepared. You’ve spent hours reviewing your discovered evidence supported by illustrative charts and schedules. You maintain your composure and concentration by focusing on your goals. You’re ready for the long day ahead.

Stay fully in command under withering attacks

Aggressive behavior, of course, is a part of evolutionary human and animal nature. Our early ancestors daily faced mortal danger and potential hostility. Protecting their community was a paramount concern. Because humans didn’t necessarily follow rules of law or etiquette back then, survival of the fittest ruled: They marauded nearby villages to acquire weapons, furs, food and even hostages.

Despite our well-developed cerebral cortexes, our modern brains still retain the structures and wiring of the so-called “reptilian brain” that made survival possible — namely the fight, flight or freeze responses. “First, according to evolutionary psychology, all human behavior is a product of mechanisms internal to the person, in conjunction with inputs that trigger the activation of those mechanisms,” according to the research paper, “Human Aggression in Evolutionary Psychological Perspective,” by David M. Buss and Todd K. Shackelford (Clinical Psychology Review, Volume 17, No. 6, page 607, 1997).

These ancient tendencies might emerge at the deposition table or in the courtroom. Some examining attorneys intentionally choose to adopt an aggressive style when they pose questions to witnesses. Typically, they’ll have in front of them legal pads filled with questions, and they’ll have stacks of potential exhibits on the table or in large boxes on the floor.

The primary reason for an attorney’s aggressive demeanor is to place a witness on the defensive and trip them up. For example, after an attorney asks a witness about their professional background, they might ask the next series of questions emphatically — verbally and physically. The attorney might speak louder and faster and appear angry. They might tilt their body, lean over the table and stretch out their arms so they can occupy as much of the middle zone of the deposition table as possible.

I’ve attended many depositions either as the witness or in the role of assisting counsel with the depositions of other witnesses. I’ve found the best way to maintain my composure in the face of aggression is through mindfulness and relaxation. I allow examining attorneys to be themselves, and I stay fully in command of my sensibilities and remind myself that I’m prepared and ready.

Preparing for the hot seat

How can we use the exclusively human parts of our brains — the “executive function” or the pre-frontal cortex — to manage stress and conflict more productively?

The examining attorney’s staff might videotape depositions to: 1) allow the examining attorney to play back portions of your deposition testimony at the trial or hearing 2) intimidate and/or 3) preserve testimony of elderly or unwell witnesses who might not be able to testify at the trial or hearing.

I actually prefer video depositions because sitting still in the chair helps me to relax, ground my physical and psychic energy, focus my mind on the case’s facts and project mastery of the subject matter. I’ll be spending the majority of the day or days in that same chair, so I might as well acclimate. (Of course, I turn off my mobile phone.)

Often, other players — additional attorneys, clerks, opposing expert witnesses — will be in the deposition room. When I first walk in I try to sense their moods so I can be independent of their subtle, distracting influences. This tactic is similar to a basketball player who attempts a free throw in a crowded arena: They must tune out distractions like crowd noises, music and people waving signs.

During the deposition, don’t converse and attempt to build rapport with the examining attorney. Just answer the questions with unbiased answers. Of course, the court reporter might interrupt the flow with questions or requests for clarification. I speak clearly and calmly so the court reporter can transcribe my testimony efficiently and accurately. Such mindfulness techniques help me be effective.

Handling the combative style of an aggressive examiner requires adoption of a resilient mindset that avoids “taking the bait” and feeling personally attacked by the attorney. I tell myself that this attorney doesn’t really know me, and his aggression has nothing to do with me as a person but with my role as an expert witness. I remind myself that this person is only doing their job and helping their client achieve a good result. In a real way, my expert rebuttal report (when retained by the defense) gets in the way of the plaintiff’s counsel achieving their objective. This reminder helps me to look past the verbal and non-verbal aggression and listen to the content of the questions.

Counterproductive aggression

Attorneys aren’t the only players who can be overly aggressive. During a highly contentious divorce case years ago, I represented the wife as a forensic accountant. At the deposition of the wife’s husband, he was seated at the opposite side and at the end of the table from her. Reportedly, he had been aggressive toward her during the marriage.

The attorney asked his questions in a non-aggressive manner, but the husband became quite agitated. After one question, the husband lunged forward onto the table. His wife shrunk back into her chair. Even though her husband wasn’t directing his anger at her, her past experiences with him had conditioned her to recoil. The husband’s behavior, coupled with her reaction, undermined the husband’s standing in the case.

I assisted counsel in another highly combative deposition in which the two opposing attorneys threatened each other. Weeks after this ugly event, the opposing counsel’s client terminated him, and the case settled soon after. The client surely recognized that his attorney’s style was counterproductive.

Techniques for staying cool

When an examining attorney is asking me questions — whether or not the attorney is aggressive — I insist on finishing my responses to all questions and don’t allow the attorney to cut me off at any point. I also insist that the attorney ask me one question at a time. I do all this to equalize the deposition and show I won’t be bullied while simultaneously interrupting and dissipating any previous aggressive questioning. This is similar to a batter in baseball who’s waiting for the next pitch and won’t be influenced by the velocity or style of the prior sequence of pitches.

If the attorney asks questions in a fast-talking, “power-mongering” manner, I’ll slow things down by answering in a normal, deliberate speed. I might even lengthen my answers if I see the aggressive attorney wants quick answers to open-ended questions. However, I also try hard not to expand answers to yes-or-no type questions; otherwise, the examining attorney might (rightfully) ask the court reporter to strike my response.

I might ask the attorney for whom I am retained to ask the examining attorney to lower their voice if the decibel level becomes inordinately high. I do this in part to win back some control and to allow myself a tiny break while the attorneys (possibly heatedly) discuss their style and demeanor. I avoid getting caught up in the forays among attorneys; instead, I use this time to refocus on my subject matter and ready myself for the next question.

It’s extremely important to clear your mind after each response so you can accurately listen to the next question. Even when you might have forgotten to elaborate on an important point, the attorney who retained you will be able to ask additional questions, which will allow you to clarify your previous responses or add new information. Of course, the opposing attorney also might ask new questions but only on your responses to the questions of the attorney who retained you.

Another helpful technique is to state that you don’t understand a question or request that the opposing attorney ask it again. They might strongly challenge your request if they’ve asked you a compound question or one involving legal strategy.

Also, the examining attorney often doesn’t have your level of subject-matter expertise and might ask questions unartfully. It’s best to slow down the process rather than try to interpret what you think the question is. Allow a small period of silence to occur between an inappropriately worded question and your response to give your attorney an opportunity to object to the question. If you blurt out an answer it will be difficult or impossible to walk back that response. After the deposition, you’ll receive a printed transcript, which you must review to find any errors, but you can’t alter your testimony. Sometimes, placeholders will be left in the transcript for dates, places or names that you might have forgotten. Those missing elements can be filled in later.

Support from court officials

The court reporter’s task is to transcribe every uttered word and even nods of the head or other body-language gestures. I have frequently seen a witness nod a “yes” answer and one of the attorneys in the room write in the record: “The witness nodded in the affirmative.”

The court reporter must contend with aggressive attorneys or hostile or uncooperative witnesses and make frequent demands for proper decorum in the room. Imagine the difficulty transcribing an active argument with two or more people talking at the same time. Court reporters must also find ways to maintain emotional distance and safety in these fraught situations.

Courtroom behavior is usually more controlled because the judge can admonish unnecessarily aggressive antics. This is also true in an arbitration hearing in which a retired judge is usually the arbitrator. I’ve been a witness at several depositions in which the attorneys disagreed so emphatically on a particular aspect of the deposition procedures that they called the judge’s chambers to request an immediate ruling.

I recently worked as an expert witness on a case brought in surrogate’s court in which the judge appointed a magistrate to attend every deposition. The magistrate’s presence added a high level of decorum to the proceedings. He issued several rulings on the spot, which helped the depositions proceed more fluidly.

Fear not expert witnessing

You don’t have to be afraid of testifying as an expert witness. Although the stakes might be high, you can teach yourself to read the room and cope with common stressors of the process and flow of a deposition. Through preparatory exercises of mindfulness, concentration on your objectives and reminders to yourself to do your best, you can settle your mind and neutralize even the most aggressive style. The road to becoming an effective expert witness certainly isn’t easy, but it can be professionally rewarding even if your seat at the deposition sometimes heats up.

Read "Accepting the role of a testifying expert" at the end of this article.

Eric A. Kreuter, Ph.D., CFE, CPA, CGMA, is a partner in the advisory services group at Marks Paneth LLP. His litigation support experience includes testifying in depositions in civil damage cases, testifying as an expert witness in court trials and arbitration hearings, and participating in mediations. He’s also testified for a grand jury in a criminal case and assisted counsel numerous times in the depositions of other witnesses. His email address is: ekreuter@markspaneth.com.

Accepting the role of a testifying expert

Serving as a testifying expert is a difficult task, but it can be a rewarding experience. Before accepting a role that could potentially require testifying as an expert, the examiner must be capable of doing so and confident that the testimony will be helpful.

Ideal expert witnesses need to be respected experts in their fields and continue learning throughout their careers. For CFEs, that means completing Continuing Professional Education, regularly reading publications in their fields and actively seeking new developments. Fraud schemes and the investigation and prevention measures associated with them are always evolving, so the ideal expert will stay on top of these issues.

A fraud examiner also needs to confirm that the requested testifying role is within the scope of their skills. For example, a fraud examiner might have a long history in securities fraud, but that doesn’t mean that they’re qualified to testify in a case that will require appraising assets. Experts must reject work outside of their scope for the interests of the retaining parties and their own careers.

When a party asks an expert to provide expert testimony, it’s usually easy to see what that party wants the expert’s testimony to be — whatever will most help the party win. An expert must make sure that their analysis is objective and not shaped by the retaining party’s will.

Asking the right questions of the retaining party in the beginning is necessary to avoid becoming an expert witness in a case in which the expert shouldn’t be involved. The types of questions necessary depend on the case, but in general, the expert should ask:

• Who are all of the parties and potential parties to the litigation?
• Who are the other attorneys for all of the parties?
• Who are the other experts in the case?
• What are the basic facts of the case?
• What’s the scope of subject matter the party is requesting expertise for?
• Is the party seeking a consulting or testifying witness?
• Are there any known or potential conflicts of interest?
• What court or administrative body will hear the case and what procedural rules should the expert know about?
• How will communications work (e.g., will the clients be contacted directly)?

Conflicts of interest

When retained, experts must quickly determine if any conflicts of interest exist — or even appear to exist — in a particular case because a conflict might preclude participation. A conflict of interest exists when any current, prior or future relationship with parties to the litigation will impair an expert’s ability to objectively evaluate and present an issue for a client.

Prior or ongoing relationships might suggest to others that the expert can’t provide undivided loyalty to the cause and the client. Whether a relationship causes a conflict of interest depends on the facts. Simply meeting a person doesn’t necessarily cause a conflict, but a close personal or business relationship is more likely to give the perception of a conflict.

An expert can take several actions to determine if any conflicts of interest exist. For example, before an engagement an expert can ask for the names of all parties involved and then review the names with their associates to disclose any connections, however remote.

Compensation (whether from the parties or from the court) for expert testimony services is standard, and it isn’t generally considered a conflict of interest. The amount of compensation can be brought up at trial, so the payment shouldn’t be above normal.

Penalties for consulting or acting as an expert in a conflict of interest include expert disqualification, attorney disqualification and inadmissibility of expert testimony.

Source: 2018 ACFE Fraud Examiners Manual, 2.1206-2.1208