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June/July
2006 |
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How the Turnaround Professional
Should Prepare to Give Expert Witness Testimony. Part 2
- How to manage the Deposition
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In Part
One, we talked about how important it was to be prepared to
give a deposition. ‘Be prepared’ is easy to say, but
what does that mean? If you know the case and kept your eyes and
your ears open, why can’t you just show up and ‘tell
the story?’ The first reason why you can’t just show
up is that opposing party wants you to tell the story wrong.
In this final part, we will discuss:
1. What you will be asked
2. How to answer questions
3. How to tell the truth
4. How to handle leading questions and hypothetical questions
5. How to present your background
6. Attending your opposition expert’s deposition and other
issues.
WHAT YOU WILL BE ASKED
Many things can be said about attorneys - some
things are actually positive. One of the positive things is that
lawyers tend to think linearly and build towards a finish. This
is definitely true when it comes to depositions and can be used
to your advantage.
In 96 out of a 100 depositions, you will be asked
the following questions and probably in this order. Note the progression
from discovering your background, to your credentials to give
testimony, to your experience in the area or on the subject and
finally, are you experienced in the giving of depositions. In
each case, they are trying to find a weakness in your armor or
an area to exploit. Or, if you can give an excellent deposition
and would stand up to scrutiny in court, maybe they will find
they do not want to put you on the stand. Bottom line is that
they want to know how you will assist their cause or hurt it.
They will ask:
• Name, address. Experienced professional’s
spell their last name out letter by letter slowly and already
have given their business card to the stenographer. Do this
– the lawyer will notice.
• Tell me about your resume. What areas do you consider
yourself to be an expert in? (If you don’t mention the
area you are being deposed about, ouch. If you do mention it
– and you should – be prepared to explain why you
should be considered an expert.)
• Tell me about your educational background.
• Tell me about your employment history. (You should be
proud of what you have accomplished and need to support your
statement of “expertness” with experience. As this
is a deposition, you can be verbose. If this was a trial and
you went on and on, you risk losing the jury.)
Tell me about the things that substantiate
your expertise? Tell me about your:
• Professional society memberships.
• Degrees or certificates.
• Teaching or lecture experience
• Licenses or certificates
Tell me if you are any good at what you
do and do others think so: Tell me:
• Have you ever written a book or a journal
article?
• Have you conducted research on this subject? Were the
results published?
• Have you testified before on this subject? Where, when?
• How often have you testified?
• What percentage of your income comes from testifying?
• What percentage of your time is spent testifying opposed
to working in your profession?
• How many cases have you served as a consultant and testified?
• How many prior cases involve the same issues as this
case?
By now, if you are like 99% of turnaround professionals,
you are getting tired of saying ‘no’ or ‘once’.
DON’T lie or embellish. Remember that this is a deposition
and time is of no consequence to the lawyer asking the questions
e.g. he’s paid by the hour. If you do embellish and get
caught, expect that the rest of your day will be horrible. Expect
that the lawyer might tell the judge you are not qualified to
speak as an expert and in fact have falsely testified already.
Nothing good will happen if you embellish.
Depending on how important your testimony is
to the ultimate verdict reached, expect questions that are more
general or very specific. Remember that the opposing attorney
wants to know 1) who you are 2) what you did 3) what you know
4) how you got to the conclusion of what you think you know and
maybe 5) what your opinion is. Why he thinks you are there and
why you think you are there are different. You are there to explain
what happened and what should have happened.
HOW TO ANSWER QUESTIONS
Guidelines to keep in mind throughout every minute
of the deposition are:
1. Listen to the question and pause before
answering.
Listen intently. Write down the question if
it is complicated. Ask for the question to be repeated if you
didn’t hear it or understand it. Too many times the inexperienced
consultant will assume they know what the question is, stop listening
and start to think about an answer. Let the question be asked.
Wait, then wait a second longer and then when you understand the
question, start to think about the appropriate answer.
In a deposition this is critical. No one is keeping
track of the time you took to think about the answer. In a court
trail the recommendation of waiting will be the same but you cannot
wait for minutes to give your answer. In a deposition you can
and should.
2. Speak directly to the person asking
the questions.
Do not say more than necessary. Answer only
the question asked. Do not provide any more detail than necessary
to give a correct and accurate answer. Don’t let the opposing
attorney ask open ended questions such as, “What happened
next?” Have him or her explain what they want to know exactly
so you can give an exact answer to their question. If you let
them fish, you will get caught!
3. Tell the complete truth to the best
of your knowledge.
The stenographer is there to take down every
word you say. It is sworn testimony. Don’t say anything
you don’t want to hear at trial.
My first deposition as the Custodian of Records
for a Fortune 500 company resulted in my deposition coming back
to my boss 300 pages in length. I was a master teacher of everything
asked about and things I figured they should have asked about.
I was then sat down and reminded that there are
three things to remember in a deposition: 1) ‘Yes’
is an acceptable response. 2) ‘No’ is an acceptable
response. 3) ‘I do not recall’ is an acceptable answer.
Any response beyond the first three suggested responses creates
risk and I was to be risk adverse.
The next deposition was 23 pages in length. I
answered all of the questioned asked, nothing more and got home
hours earlier.
When your attorney objects to a question, listen
carefully. He may be making a legal point but also may be sending
you a warning or sees that the questioner’s rhythm needs
to be broken. Whenever your attorney starts to say anything, you
stop saying anything!
If your attorney directs you not to answer a
particular question, state ‘I will not answer on advice
of counsel.’ Remember that you are the one sworn in and
make sure you cover yourself. Let the lawyers work things out
when there is an argument.
If the opposing attorney is trying to be tricky,
ask him or her to rephrase each question until they either go
to another question or get the question to the simplest of terms.
Then say, ‘If you mean …., then the answer is…’
If you can’t figure out the question, define the question
you are answering!
HOW TO HANDLE LEADING AND HYPOTHETICAL
QUESTIONS
Leading questions are those with a given statement
in which you are only asked to agree. If any part of the question
is not correct, you say no. Or, an acceptable responsive answer
is that you cannot entirely agree. Remember that your lawyer will
not be asking you any questions during the deposition. At a trial,
yes. Here, no. Don’t expect to be lead by the opposing lawyer
in the right direction!
Hypothetical questions are almost always signs
of something bad about to happen. Keep in mind you are there to
explain what happened or should have happened.
You might be asked a question where a simple
yes or no is sufficient. You still have the right to explain your
one –word reply.
Your opinion is important to your friends, maybe
your wife or husband. The opposing attorney does not want to hear
your opinion generally.
HOW TO PRESENT YOUR BACKGROUND
You are being deposed because you have information
valuable to the resolution of the case. You were asked to be deposed
because you are qualified to present information of value to the
settlement of the case. You might be being deposed because you
are an expert in a certain arena. If the opposing attorney neglects
to ask you about your qualifications, you are being tricked.
Your background must be brought up to lay a foundation
for your responses. If necessary, have your attorney enter your
curriculum vitae into evidence and have it attached to the deposition.
If you aren’t qualified, your deposition won’t be
allowed to be read to the jury.
When asked about your background, remember that
you want to present enough information so there is no doubt in
anyone’s mind that you are qualified. Take whatever time
it takes to tell the story so you will be recognized as qualified.
Also, remember that if you are eminently qualified, the opposing
attorney won’t bring it up at trial. It’s only if
you might not be qualified that you will hear about it. Don’t
let that happen.
ATTENDING THE OPPOSING EXPERT’S
DEPOSITION
If your client-attorney is not extremely knowledgeable
in the subject at hand, he or she should have you attend the depositions
of the other side’s key witnesses. (Don’t forget to
get paid for this!)
Don’t be surprised if you are asked by
your attorney not to give your deposition before the plaintiff’s
expert does. There is value in knowing where they are going to
take the case.
You should suggest to the client–attorney
to ask the following questions as they will be excellent places
to start from in your preparation and for you to assist him or
her interrogate the opposing expert.
1. Has the expert prepared any draft or preliminary
reports that are not on file?
2. If the expert has not produced a written report, was this
at the instruction of counsel?
3. What work has been performed on the case? What is the exact
nature of the assignment? How much does the expert charge? How
many hours have been spent on reading, discussion, tests, site
visits?
4. Has the expert been assisted by anyone else? (They could
hold an inconsistent opinion.)
5. What additional work does the expert expect to perform? What
additional work would the expert perform if there was an unlimited
budget?
6. What is the expert’s opinion, tentative or final, on
each issue involved in the case? Has the expert reached any
other opinions not already mentioned?
7. What is the basis or foundation for each opinion? On what
facts, assumptions, publications or other factors has he or
she relied?
8. Is the expert aware of any opinions, facts or articles which
are contrary to his own opinions?
I suspect you can see the value of the responses
you get from each of the questions. It is also more fun to go
fishing than to have someone fishing for you.
In sum, after making sure you get paid, remember
these:
NINE FUNDAMENTALS FOR TESTIFYING AT
DEPOSITION:
• Be a real expert. Stick to what you
know.
• Tell the truth. If you don’t know something, say
so.
• Don’t volunteer anything, period.
• Take your time.
• Do not guess.
• Speak only for yourself.
• Stay alert. If you get tired, take a break.
• Stay cool.
• ‘Yes’, ‘No’ and ‘I don’t
recall’ are acceptable responses.
It is impossible in 2165 words to tell all there
is to tell about depositions. Depositions are nothing to fear
and yet are something that must be taken seriously. There are
many, many books on the subject including: The Expert Witness
Handbook by D. Poynter, Succeeding as an Expert Witness by H.
Feder, Expert Testimony: A Guide for Expert Witness and the Lawyers
Who Examine Them by S. Lubert. I admit to benefiting from these
books and note there are 20+ more listed in them for those who
are going to consider being a professional expert witness or for
those who just want to do their best at whatever they do.
Be a real expert. Stick to what you know and
know what you need to know.
Miles Stover has been in the business of working with under-performing
companies for more than two decades. He has acted as CEO, COO,
CRO, CFO, President and Advisor to more than two dozen companies
in bankruptcy. Mr. Stover’s credentials include: Certified
Turn-around Professional, Certified Insolvency and Restructuring
Advisor, Certified Fraud Examiner, Certified Management Consultant,
Certified Professional Consultant to Manage-ment and Certified
Confidentiality Officer.
He can be contacted at 253.857.6730 or www.turnaround-inc.com.
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