March 30, 2012

Guidelines for Your Subject Matter Expert: Deposition

Whether you have a well qualified legal expert who is testifying for the first time, a seasoned expert witness who could use a refresher, or are looking for a document you can use to consistently brief all your experts, the following article is a good resource:

Guidelines for Your Subject Matter Expert
Deposition - Before, During, and After

You have been working for a client, an attorney, whom you may not have met in person, and you have completed many, many, document reviews including reviewing other persons’ depositions, have prepared and delivered your official report to your client, and the case has still not settled. You are subpoenaed for deposition at a defined time and location. Remember ABC - Always Be Cool.  That means calm and confident.

Here’s what will happen:
1. Your attorney/client will meet you the day before your deposition and will review with you the points that he/she considers most important. This could be the first time that you have actually met each other. Your client will also advise you of the personality of the opposing attorney and what you will likely be asked.

2. How will you remember all those hundreds of pages you reviewed? You will remember enough, and you will have all the printouts with you, and you will have your laptop or notebook computer and flash drives with you.

3. At the deposition you should arrive early to meet again with your client.

4. Men, wear your best pin stripes, expensive yet conservative tie, best shoes, etc. Women, wear comparable business attire. A good thought to keep in mind is “Dress like you’re worth your fee.”

1. You will be seated at the head of the conference table with the videographer at the other end. The court reporter will be seated on your side. The videographer will help you adjust your microphone and may ask you to rearrange some documents that may be blocking the camera’s view of you. The attorneys will be seated at opposite sides of the table. You will look at and talk to the attorneys, not the camera. The court reporter will administer the oath to you.

2. In the case of a trial, a judge will be presiding. You look at the attorneys asking you the questions.

3. In the case of an arbitration hearing, a group of attorneys comprising the arbitration board will be presiding. You look at the attorneys asking you the questions.

4. When an attorney talks, listen. There’s a tendency at times to start the answer before the question is completed. That’s interrupting and it does you no good.  Listen until you are sure the question is complete; then answer. Be sure that you understand the question. If you are not sure of the question, ask the attorney to repeat it in the same or other words. Don’t volunteer any extra information unless you believe it is necessary to clarify your response.

5. Remember that even though you shook hands and smiled upon meeting the opposing attorney, and you want to be cooperative, he/she is the opposing attorney and represents the other side.

6. During the course of the deposition there will be times when your client will state “Objection” and will say a few words stating why there is an objection. You pause until your client is finished and then look at the opposing attorney again. Your client has gone on record. At deposition there is no judge to sustain or overrule; the objection is for the record.

7. The opposing attorney will start by asking you to agree to all the things you are not. If you are a pharmaceutical chemist who is an expert on FDA regulations, he may say “You are not a physician, are you?” and you reply that you are not a physician. This will go on establishing that you are not an engineer, etc. During this time keep in mind what you are.

8. The opposing attorney will continue by reviewing your CV and your qualifications. That’s fine. Just listen and agree when necessary. For example, he may state “You have 25 years in this field, don’t you?” and you respond that you do.

9. As the opposing attorney gets more into the case he will ask you closed-ended questions. 
  •  Closed-ended questions have answers that have either Yes or No as the answer. 
  •  Open-ended questions allow for discussion on your part.
When asked a closed-ended question do not hesitate to say something to the effect of “I can’t answer that with a Yes or No. May I explain?” You will be allowed to do that, if not immediately, then later in the deposition.

10. There may be some questions to which your answer may be something to the effect of “I want to be sure before I reply. May I check my documents?” You will be permitted to check your printed documents, computer, or notes so that you can provide an accurate answer.

11. After the opposing attorney has said that he has no more questions, your attorney has the option to ask you questions, the answers to which will clarify statements made earlier or will bring in the discussion points that your client wants to be made.

12. The length of the deposition is unpredictable by you. It can be an hour or a day or more than a day. The length of time depends on various factors such as the nature of the case, the opposing attorneys, and the number and content of the documents you have reviewed. It is significant to note here that most consultants have in their contracts that any part of a day at deposition counts as an entire day for billing since you are usually not available for work for other clients during that time. Most clients agree with that.

1. You will want to review your deposition after it is typed, typically a week or two from the date of the deposition. You will be asked if you want to waive the right of review. You do not want to waive that right.

2. You will receive the document. Most states allow you to review your deposition and complete and submit an errata sheet to the court reporting company before it is distributed widely. Court reporters do a great job; however you want to remember that one word can change the meaning of your testimony. For example, the word “elude” instead of “allude” conveys a different meaning. There’s also the classic example of the omission of “no” or “not” which changes a negative statement into a positive statement.

Being a SME can be a satisfying and rewarding experience psychologically and financially. You have helped your client help his or her client who has been short-changed or injured in some way.

The author has been a Subject Matter Expert in cases involving pharmaceutical products, laboratory results, medical devices, and foods. He has testified in personal injury cases and in cases involving disputes between two or more firms. For more information, view the CECON consultant profile: Former FDA Employee, Regulatory Consultant, Expert Witness and Pharmaceutical Chemist