Preparing for deposition war

You look 10 years old. The opposing expert has been an expert witness for 30-plus years. Why in the world should even one juror listen to you over the opposing expert?” It was 7 a.m. in August 2021 — the week prior to my first deposition ever as an expert witness in a trial — when I received an email with these insults. The plaintiff’s counsel had retained the firm I worked for to analyze and trace the plaintiff’s investment into XYZ Corp. My then-managing partner and I jointly prepared a report detailing XYZ’s lack of inventory records, cash withdrawals disguised as inventory purchases and improper revenue recording. Because I’d performed most of the analysis, I asked the plaintiff’s counsel if I could testify rather than my manager (who had three decades of experience providing litigation support services). The plaintiff’s counsel replied with the most belittling, demeaning and unprofessional email that I’d ever received. Yet I couldn’t stop laughing. After multiple rereads of this email, I decided it would be for the best to let it go and not respond. Turns out, that was a good move.

I’d previously scheduled a telephone call with the plaintiff’s counsel for the following day to discuss details for a supplemental report that would be issued. The next morning, I called him and calmly asked about the elephant in the room. The plaintiff’s counsel told me that I’d passed his test by not responding in kind to his purposeful attempts to agitate me. The intent of his disturbing email was to see how I might react when verbally accosted. But I demonstrated that I could remain calm under intense scrutiny that I may encounter in a deposition or trial. I’d be allowed to testify for the first time pending the completion of “expert witness bootcamp” with him as my “drill sergeant.”

In the days leading up to my deposition, I studied relevant case documents and listened to solicited and unsolicited advice. Those with testimonial experience, like birds feeding their new hatchling, regurgitated every morsel of knowledge they’d accumulated for my eager consumption. I assembled a list of relevant and applicable guidance plus fringe scenarios.

Here’s some of my colleagues’ advice, in no particular order: 

1. Buy a fitted suit. 
2. Make sure that suit is clean and ironed. 
3. Bring backup clothes (in case of a mustard stain during lunch). 
4. Know your report inside and out. 
5. Study and review supporting documents to your report. 
6. Be a goldfish: Have a 10-second memory. Focus on the next question, not the last.
7. Take your time to look at a document before answering a question. 
8. Ask for a break if you need one. 
9. Only answer the question you’re asked.
10. Don’t lie. 
11. Keep an even temperament.
12. Don’t get flustered. 
13. Prepare to be spat on (figuratively) and screamed at (literally). 
14. Reread your deposition prior to trial. 
15. Don’t extend your position beyond what’s written in your report.
16. It’s OK to say, “I don’t know” and “I don’t remember.” 
17. Pause before each question to give time for potential objections, especially if you’re on Zoom. 
18. Don’t take the proceedings personally. 

Surprisingly, a good chunk of the advice I received was related to my attire. The plaintiff’s counsel requested I wear a light brown or tan suit; white dress shirt; polished leather dress shoes; and a plain, light-colored, muted tie. The plaintiff’s counsel said, “Understated attire is the hallmark of a humble, hard-working human being.” 

Deposition day arrives

On the morning of my deposition, the attorney for the other side who was going to take my deposition mistakenly mixed up the start times, so my testimony would be delayed by an hour. I waited for the Zoom call alone in a freezing conference room with my only companions: anxiety, self-doubt and thoughts of every conceivable possibility of what could go wrong.

When the deposition finally began, I was nervous and on edge, with negative feedback looping in my mind. The lawyer said he was “shocked” to learn this was my initiation into the testifying profession. Despite his attempts to fluster me, I began to find my footing when he started to ask about my report. Fans of the Apple TV show Ted Lasso might recognize the advice in the list above to be a goldfish and have a 10-second memory. After I answered the lawyer’s question, I’d focus on his next one and didn’t dwell on my perceived mistakes. My confidence naturally built as I answered questions. 

My thorough preparation placed me in good stead. The deposing attorney said he had a document that directly contradicted a statement in my report. He asked me if I’d therefore amend my report. I asked to review the document before responding to his question. After a minute, I found him the section of the document that I’d relied upon to make my statement. Because I knew my stuff, I avoided the pitfall. 

My deposition preparers were wise to advise me to only answer the questions I was asked. The only answer to “Do you know what time it is?” was yes. The increasingly frustrated deposing attorney asked me many times if I could explain certain sections of my report. My only response each time was a terse “yes.” 

I then took control of the deposition at a pivotal moment. He misquoted my report and then asked if his statement was correct. I paused for a moment, looked back at my report for the correct reference and calmly stated, “That’s not what I wrote in the report.”

I had remembered the plaintiff’s counsel’s insulting email in which he wrote: 

“Being a good expert witness means you stick to your opinions and do not stray and do not opine on any other areas which are not in your report. I am sure you played the game ‘King of the hill’ as a child. Well, this is it on the grand stage. This hill is your expert witness opinion upon which you will give expert witness testimony. So long as you ardently defend that hill and do not leave it to go to another hill when you are invited to do so by opposing counsel, resist the urge AT ALL COSTS, you will lead us to victory.”

I don’t know if anyone else noticed, but the plaintiff’s counsel who retained me gave a thumbs up from his Zoom window. From that point on it was smooth sailing. I’d found my groove. Tales of lawyers screaming and spitting questions didn’t come to fruition. I maintained an even temperament and did my best not to get flustered. 

The litigants in this matter didn’t end up settling and, as a result, the case was scheduled for trial. Prior to trial, I was told to review and reread my expert report, the opposing expert’s report, depositions and any documents to which I would testify or rely upon. 

The weekend before the trial was to begin, the defendant unexpectedly filed for bankruptcy, which placed the trial on an indefinite stay. While it was heartbreaking to have spent months preparing, I’ll use my hard-earned knowledge for other engagements.

Looking back on the experience, that initial blunt email from the plaintiff’s counsel spurred me to overprepare, and because of that I thrived. And I lived another day as a newly experienced expert witness.

“Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.” - Sun Tzu

[See sidebar: “Advice for my first deposition seared into my brain”.]

Alexander Dokuchaev, CFE, CPA/ABV, is a supervisor in the advisory services group at CBIZ Marks Paneth. Contact him at alexander.dokuchaev@cbiz.com. 

Advice for my first deposition seared into my brain

Since my first terrifying expert-witness experience, I’ve authored more expert reports. Here’s what my colleagues first advised:

• I can’t overstate the importance of studiously reviewing your expert report and the underlying documents that support your opinions prior to your testimony. The absolute worst disservice for yourself and any client is to wing your testimony. Your confidence will increase, and you’ll be prepared for inevitable surprise curve balls.
• Depositions and trial testimony can be mentally and emotionally exhausting. It’s perfectly valid to request a break to find your bearings and stay mentally sharp.
• Don’t take what happens in the deposition personally. While counsel are advocates for their clients, experts are advocates for our opinions. Passionate and heated exchanges between lawyers and experts have been met with camaraderie in the break room afterwards. No matter what your experience level or age, once you swear the oath, everyone becomes your peer.
• Don’t stray from your deposition testimony. Don’t fall for trick questions and then accidently change your prior testimony.
• Pause and take a moment to collect yourself before each question. This allows your attorneys to object and is especially helpful to the court reporter when two people are talking at the same time.
• Ultimately, we’re only human. It’s perfectly acceptable to answer a question with “I don’t know” or “I don’t remember” if that’s the truth. The best answer is always to tell the truth. Perjury doesn’t look great on a resume.