How to Excel During Depositions

6.3 Advice on Answering Questions at Depositions

Avoid Absolute Words
You are well advised to avoid, where possible, absolute words such as "always" and "never." Absolute words are frequently an invitation to, and fertile grounds for, cross-examination by counsel. Counsel will attempt to damage your credibility by first getting you to make an absolute statement. She will then use counterexamples in an effort to show the falsity of your statement.

Example 6.29

Q: You testified previously that you have read everything written on warning labels, isn’t that correct?

A: Yes, but that was some time ago.

Lesson: The expert’s response here was a good recovery.

Example 6.30

Q: Doctor, it’s your testimony that acute stress cannot cause heart attacks under any circumstances, is that correct?

A: It is.

Q: So, Doctor, if I were to reach into my trial bag here (reaches into bag) and pull out a loaded .44 Magnum and point it at your head, and you then had an immediate heart attack, it would be your testimony that the heart attack was not related to stress?

Lesson: The use of absolute words ("any" circumstances) opened the expert up to this sort of cross-examination.

Don’t Elaborate or Volunteer
Volunteering information can be one of the biggest mistakes an expert makes at deposition. Generally, an expert should answer only the questions she is asked and not volunteer information. The volunteering of information will almost always result in new lines of cross-examination. It may also disclose information to which counsel otherwise never would have become privy.

Example 6.31

Q: What objective findings of malingering did you make?

A: Lack of atrophy, good muscle tone, oil and grease on his fingernails. There were plenty of subjective findings as well.

Q: Let’s get into your so-called subjective findings.

Q: Would you agree with me causation is a medical opinion?

A: Partially.

Q: Okay. (Note: No question put to witness, but he answers nonetheless.)

A: If there are idiopathic issues, then it’s a medical opinion. If there are not any glaring idiopathic and if a person works in a job that exposes them to risk factors, then I can certainly analyze the job and determine what factors were present and if the person was exposed to those risk factors and barring any other, you know, medical opinion or medical opinion that says, well, there is an idiopathic issue here also, then we assume that the work caused it.

Q: Can you define for me idiopathic carpal tunnel syndrome?

A: Idiopathic causes would be, for example-can be related to diabetes, pregnancy, heart, circulation, even specific anthropomorphics like the size of a person’s tunnel, carpal tunnel.

Q: The word idiopathic itself, what does that mean?

A: Well, we’ll have to look up the definition.

Q: You’ll defer to the dictionary for that.

A: Yes.

Lesson: The witnesses’ volunteering of information in both examples opened up new lines of questioning. They should have stopped their answers after their first sentences.

Be Careful When Using Hedge Words
You need to be careful when using hedge words when expressing your opinion. Such words include "I guess," "I believe," "it seems," "it’s possible," and "I would say." The only reason that you are testifying is to give an opinion. Hedge words and phrases can quickly undermine your opinion and are an invitation for additional cross-examination. Worse, counsel may be able to make a motion to have your entire testimony stricken because expert guessing is not allowed under the rules of evidence.

Example 6.32

Q: That’s your "guess," sir?

A: Well, what I meant to say, that it was my opinion that….

Lesson: The expert needed to avoid the hedge words. If he had an opinion he believed in, he should have stated it without employing the hedge words.

Concessions
In answering questions honestly, you may have to make an occasional concession. If you make the concession graciously and move on, you will exude confidence, integrity, and flexibility. If, on the other hand, you doggedly refuse to give an inch, you may come off as rigid and partisan.

The most common error the beginning expert makes in a deposition is the failure to concede an obvious and irrefutable point out of misguided loyalty to his or her side of the case…. Quibbling over the possible exceptions or equivocating in some way helps no one.

Example 6.33

Q: Now, would you agree just because the Glasgow Coma Scale was 15, there were no focal neurological deficits, that one still cannot rule out whether or not Mr. Framo had suffered a concussion or mild brain injury?

A: That’s correct. He could have.

Lesson: When an expert makes a concession promptly without the necessity of a long series of leading questions, the concession’s effect on the jury or fact finder is reduced.

Example 6.34

Q: If somebody does a flexion and extension movement making half a million pieces a year, Doctor, would that be significant enough to cause someone to get carpal tunnel syndrome from their job?

A: Again, I would have to look at the specific flexion-extension activity, but certainly that degree of flexion-extension activity at the wrist, one would have to consider that as a, you know, a cause or a contributing factor.

Counsel: Thank you. That’s all I have.

Lesson: When the expert fights the concession every inch of the way and concedes only when left no reasonable alternative explanation, the concession is emphasized. Counsel frequently use such a concession to conclude the deposition with a flourish.

"I Don’t Know"
If you are asked a question that you do not know the answer to, your answer should be, "I don’t know." There is absolutely nothing wrong with this response if you genuinely do not know the answer to the question. There are probably thousands of questions that can be asked of experts in any discipline to which they have no answer. The more the expert hesitates or tries to avoid saying, "I don’t know," the more emphasis is given to this "lack of knowledge" by the jury or fact finder. No amount of hesitation will bring the answer to you if you do not know it.

Example 6.35

Q: What is the coefficient for friction for steel on cement?

A: I don’t know.

Lesson: The forthright admission of lack of knowledge was in the expert’s best interest. Had the expert tried to talk around this, it would have only emphasized her lack of knowledge.

Example 6.36

Q: If those wrist rests were unavailable prior to 1991, would you agree she had a higher probability then of being in a neutral position?

A: I don’t know. That’s an interesting question. I don’t know. I mean I guess that’s my answer, I don’t know. But I think the wrist rests certainly emphasizes, even though you have the Ridyard’s ergonomic assessment of 1994, if Miss Sanford and/or her supervisor were trained, that would not have been a product of choice.

Lesson: If you allow yourself to get flustered, your lack of knowledge will be emphasized to the jury. The expert in this example would have been better served by replying, "I don’t know" and then sitting quietly and waiting for the next question.

"I Don’t Recall"
When asked about a fact, situation, or occurrence that you honestly do not remember, the best answer is, "I do not remember" or "I don’t recall." This is only an appropriate answer when you honestly have no recollection. Perjury ramifications aside, an endless string of "I don’t recalls" (or even one that may seem hard to believe) may tend to damage your credibility. If your response is that you do not recall, counsel may then attempt to refresh your memory. This is permissible under the rules of evidence.

Example 6.37

Q: Doctor, do you have any memory, independent of the medical records, of any of the events that occurred on August 5 of 1990, regarding the treatment of Ms. Lynn?

A: I would say no. Can’t really remember any real specifics on that particular day. I remember snatches of her. Over her two-year course, I recall her and various things over a two-year span, but that particular day I can’t recall any real specifics.

Q: Have you reviewed the medical record of August 5, 1990, from the emergency room, the Baystate Medical Center?

A: Yes, I have.

Q: Does that medical record refresh your memory in any way as to where you were approximately the time that she was admitted to the hospital about 4 a.m. on that day?

A: She came in at 4 a.m. that morning. The reading doesn’t refresh my memory.

Q: Does the record indicate approximately when you first appeared on August 5 at Baystate Medical Center?

A: Just looking at it very quickly now, looked at this in detail earlier, I don’t see anything in the record in and of itself that refreshes my memory on when I physically was present, near Ms. Lynn or in her care. I don’t see anything that would indicate an exact time.

Lesson: As noted above, if the document does not refresh your memory or recollection, you are free to so testify. In this case, counsel was forced to drop this line of inquiry and move on.

Beware of Open-ended Questions
You should be cautious when dealing with open-ended questions. These questions invite long, rambling answers. Counsel may be trying to get you to volunteer information not called for by the question. If you do volunteer information, it is likely that this information will be used against you during cross-examination. You should therefore answer open-ended questions as concisely as possible, being careful not to provide information that was not asked for.

Example 6.38

Q: What do you consider to be the unsafe uses of an ATV?

A: Oh…. I can give you some highlights. There are many, many unsafe uses, but classic unsafe use is as a mobile transport form to transport you and a loaded firearm. This is not a motorized attack vehicle. It is not a multi-passenger transport vehicle, although it has to be conceded that because of its stability and because of its wide platform, you can safely transport a passenger on it. You just have to be more careful. But that is not a correct use of the vehicle, so depending-it’s like everything else. You could probably even transport a loaded firearm safely if you took enough precautions, so when I say unsafe use, it’s not a recommended use, not that you can’t pull off that maneuver safely with enough care.

Certainly you could easily find loads and pulling tasks like stumps that just by their nature the vehicle was not designed to do, and people will try and use the dynamics of the vehicle to run up against the rope and jerk on something really hard and say-but that’s not a good idea.

It is not for transport on paved roadways. I mean, you can drive it. It will run. The traffic cops in Hawaii write all their parking tickets on three-wheeled ATVs with tires scrubbed smooth, and you can do that safely, but that’s just not a recommended use. I mean, you are-you are….

I think it’s fair to say unless you know what you’re doing, it is not a competitive speed machine. I mean, there are…people race it and, and…most people don’t have any business racing cars. It doesn’t mean they don’t do it, but that is potentially a hazardous use.

They are not vehicles…for-I don’t know how to characterize this…I’m going to say not very well thought out horseplay. That’s an inelegant statement, but you see uses of these vehicles for games like chicken and…sort of it’s horses substitutes for games. I mean, they are not a horse. I mean I don’t mean that pejoratively. Horses, because they have their own will, they have their own unique set of problems, but an ATV is not a horse, and attempting to use it like one can be a misuse of it.

And finally, I guess, an ATV is not a toy. Anything with a multiple horsepower engine is not a toy in the sense that classic things people think of as a toy is something you can drop-drop in the crib or playpen, and, you know, it ain’t one of those. It’s a vehicle that has the capability of putting energy at the command of anybody…tall enough to reach the handle bars and the accelerator and the gear shift or long enough legs to reach the gear shift, and the people who ergonomically fit that envelope do not overlap totally with the people whose judgment is appropriate for operating one of these, and so use of it as a toy, as a toy substitute, is not appropriate.

Now, obviously, every one of those categories has bits of infinite detail, numerous scenarios.

Lesson: Note the numerous areas of inquiry opened up by this long, rambling answer to a single open-ended question. Experts are better served by brief, succinct replies to open-ended questions. If counsel has follow-up questions, let her ask them. Don’t do the lawyer’s job for her.

Avoid Slang
Avoid slang expressions when replying to questions. When they are transcribed and read back to a jury, these expressions diminish the value of your reply and can make you sound almost illiterate. Most slang expressions slip from experts unintentionally. To avoid making such a slip, you will need to maintain your concentration and focus.

Example 6.39

Q: Now, sir, you were asked on direct examination about the history that you took from Ronald Evans, right?

A: Uh-huh.

Q: And the history is the story that he tells you, correct?

A: Uh-huh.

Q: Is that a yes?

A: Yes, it is.

Q: And you told us that Mr. Evans told you that he hurt himself while lifting some boxes at work?

Q: Uh-huh, I mean, yes.

Q: Are you familiar with an organization called M.O.R. Incorporated, sir?

A: Nope.

Lesson: The expert’s use of slang cheapens his testimony and diminishes his credibility.

Counsel’s "Bumble and Fumble" Gambit
Do not help counsel when he is apparently bumbling or fumbling with some type of technical question. Experts are frequently tricked into volunteering key information by such real or feigned ignorance. Let counsel bumble or fumble all they want. Remember, you are there to answer questions, not to assist counsel in framing them correctly.

Yes or No Responses
If counsel asks for a yes or no response and you can answer the question with a yes or a no, endeavor to do so. If counsel attempts to insist on a yes or no answer to questions that cannot be answered in that fashion, you can state, "I cannot answer that question with a yes or no reply." It will then be up to counsel to either let you explain your answer or rephrase his question.

What to Do When You Make a Mistake
Expert witnesses are not expected to be perfect. During a long and arduous deposition, you may misspeak or make a mistake or error. If you do make a mistake, you should correct the error on the record as soon as you recognize your error. "I want to correct a statement I made a few minutes ago. I stated that the 1991 EMG was related to the surgery. That is incorrect." Counsel may quickly challenge you on your mistake before you have an opportunity to correct it. In that case, admit your error graciously. What you want to avoid after making a mistake is making the matter even worse by your inability or unwillingness to admit the mistake. This could make you look biased. If you discover your mistake after the deposition concludes, notify counsel and correct the deposition transcript when it comes for your signature.

Example 6.40

Q: You only treated her for a 1981 accident, correct?

A: You know, it’s interesting, I’m looking at what we wrote down here and it says "1981-1984 motor vehicle accident, recovered." I may have misinterpreted what this note was. The accident was in ‘81, but we saw her in ‘84; and I apologize if I misled you.

Lesson: The expert has done a good job handling his mistake. He comes off as human, and above all, honest.

Example 6.41

Q: Your comment was that the normal EMG in 1991 related to the surgery. Now, that doesn’t make sense, does it?

A: Did she have surgery in the interim?

Q: No, she did not.

A: You’re correct, it doesn’t make sense. Well, it doesn’t necessarily not make sense, either, because after surgery for a carpal tunnel syndrome, the EMG changes can wax and wane. You can have EMG positive one month and a year later negative. It may be a direct result of the surgery. My statement may still hold up, but I made that statement in error.

Lesson: The expert here may come off as inflexible, closed-minded, or biased. Either way, he lessens his credibility by trying to explain away his misstatement.

"I Don’t Know, But…"
As an expert witness, you are under oath to tell the truth. You should not speculate, but should testify with a reasonable degree of certainty. At deposition, many experts do not practice this principle and, in fact, speculate freely. One of the most common forms of speculation by experts at deposition is the "I do not know, but…" reply. It is usually a mistake to use this response. First of all, if you don’t know, then any information you provide after the "but" is mere speculation. Secondly, you may volunteer damaging information after the "but."

Example 6.42

Q: Do you know whether or not GM employed any other method to determine longitudinal velocity of test dummies?

A: I don’t know if we compute longitudinal velocity based on accelerometers, but I suppose you could.

Lesson: The simple, direct, and best response is, "I don’t know." The throwaway statements that come after the "but" or "I don’t know" reply help counsel by providing him or her with additional information. This type of reply frequently results in new lines of inquiry and detailed questioning by counsel.

Example 6.43

Q: Do you know, in this crash test, what causes the voltage drop and rise?

A: I don’t know but that’s typically an indication that the switch is opening and closing.

Q: When you say opening and closing, sir, would you explain what you mean in this context?

Lesson: By providing a "but," the witness has opened a new line of questioning. This was probably avoidable simply by answering the question, "I don’t know" or "No."

Example 6.44

Q: Why does crash test 4665 have such charts and the remaining frontal barrier tests do not?

A: Well, I don’t really know, but if you would like me to review the other tests to determine whether or not those tests have such-I can certainly do that, but I guess this one had switches, and they must have been requested.

Lesson: This witness has answered, "I don’t know" and then made an offer to assist counsel. The simple, most accurate, and best reply is, "I don’t know." Any comments made as an afterthought are unwise, unprofessional, and inconsistent with being successful as an expert at deposition.

"Hoping"
Sophisticated counsel may attempt to trap the expert witness by the use of the word hope. If you inadvertently agree with a characterization, you may allow the lawyer to successfully call into question the reliability of your opinion. When you are confronted with an "And you are hoping…" question, it may be best to actively refute that characterization. Remember that when you are passive and agree to an attorney’s characterization or mischaracterization, you are in effect letting the attorney put words in your mouth.

Example 6.45

Q: Doctor, one more thing. Your opinion here today that Mr. Stanek has asked you about, in part, is based on the history that you get from the patient, isn’t that correct, and your training, obviously?

A: Yes, sure.

Q: And you’re hoping, of course, as most doctors, that the patients are accurate when they give you a history and tell you what’s wrong with them. Is that a fair statement?

A: Yes.

Lesson: Counsel has raised questions in the minds of the jury or fact finder regarding the reliability of the history (i.e., assumptions upon which the expert’s opinion was based). "Hoping" may be made to seem akin to "guessing." A better answer might have been, "I don’t ‘hope’ that I was provided an accurate history, I assume so unless I have reason to suspect otherwise."

Refusal to Speculate
You should not permit yourself to be tricked, cajoled, or forced into speculating when answering questions under oath at deposition. There is nothing wrong with the response, "I’m sorry, but I’m not going to speculate on that."

Example 6.46

Q: So what you’re saying here is that this coated cable itself is what deflected?

A: That is correct.

Q: And is it also correct to say that when you ran that test that a portion of that coated cable was left outside of the interlocking portion of the lacings?

A: It would be correct to say that that assembly as purchased was assembled based on our understanding and also whatever instructions that came with it so there was an equal portion sticking out of either end. The exact length of the cable beyond the lacing what we refer to as the hinge device I can’t give you a dimension on that. I don’t really recall.

Q: Was there some portion of it?

A: My recollection that the washer was crimped on the metal cap and to what extent the cable stuck out I couldn’t theorize at this point.

Q: Can you say whether it did or whether it didn’t to any extent?

A: I can’t with any accuracy.

Q: I am not asking for any millimeters.

A: I understand. I can’t speculate that it did or did not at this point.

Lesson: The expert did an excellent job of not allowing himself to be pushed into speculating.

"Possibility"
Beware of the use of the word possible. Testifying that something is merely "possible" is most likely legally insufficient. If your opinion is only a mere possibility, the judge will most likely not allow it to be presented to the jury as evidence.

Example 6.47

Q: Is it your testimony that Ms. Cain’s carpal tunnel syndrome is causally related to her employment as a stitcher at Johnson Company, Doctor?

A: It’s possible.

Q: If I were to say to you, today, that at 4:00 this afternoon, on January the 12th, 1994, here in Buffaloe, New York, it’s going to be sunny, 90 outside and we’re all going to go swimming, that’s a possibility, isn’t it?

A: That’s a possibility.

Q: That’s not a probability?

A: That’s not a probability.

Q: So, a probability is something more likely than not; is that correct?

A: That’s correct.

Q: So, when you say something is probable, you’re saying that something is more likely than not, am I correct in understanding this?

A: If it’s probable, it’s more likely than not.

Q: And possible means-well, anything is possible?

Counsel: Object, as leading.

Q: Well, how would you define possible, Doctor?

A: Possible, I would say something is possible, if there’s some likelihood it may happen, even though it’s remote. Or one of many likelihoods that, something will happen.

Q: So, we’re talking about, essentially something that one can, the difference is, probable is whether you can stake a bet on it. Possible, you might not stake a bet on it?

A: Yeah. In layman’s language, that’s good.

Lesson: When an expert witness at deposition uses the terms possible or possibly, he or she can reasonably expect the above line of questioning by counsel. If the lawyer can show that your opinion is only based on a mere possibility, he may succeed in excluding your opinion from being admitted into evidence at trial.

"I Guess"
As an expert, you are testifying under oath. Your testimony will help resolve the rights and liabilities of parties who are involved in a legal dispute. Accordingly, there is no place for you to guess. Experts are well advised to leave the guessing to financial advisers, political pundits, and meteorologists.

Example 6.48

Q: What would the purpose be of increasing spool diameter, sir?

A: Well, I’m not sure why they did it in that case. I guess there could be as many reasons as there are diameters of spools.

Q: Mr. Green, what caused the damage to the throttle valve on the accident ATV?

A: I don’t really know for sure, but my best guess was that it was misassembled by the distributor.

Q: Essentially the seat is part of the restraint system, is that correct, sir?

A: Well, I guess the restraint system consists of the belts and their attachment points within the vehicle. That leaves out the seat.

Q: In this case you did work for a company called Comp Management, Inc., correct?

A: Yes.

Q: And you’ve done other work for them?

A: I guess so.

Q: Well, yes or no?

A: I don’t know.

Lesson: Your "guesses" are not admissible in evidence. Guessing can only hurt your credibility. It should be avoided.

"I Don’t Understand the Question"
You need not answer questions that you do not understand. If the question propounded to you is confusing, the preferred answer is, "I don’t understand the question." Exercise caution in giving "I don’t understand" replies to avoid answering questions improperly. For example, if you are one of the leading computer experts in the world and have testified that you didn’t understand a question about a browser, it is likely that your credibility will be impaired. You must answer truthfully and are permitted to answer, "I don’t understand" only when that is the actual case.

Example 6.49

Q: Do you know whether or not GM vehicles manufactured prior to 1995 ever incorporated a retractor assembly with a limitation on the amount of slack that could be produced into the shoulder harness webbing?

A: I don’t understand.

Q: Let me try and rephrase the question.

Lesson: When the expert legitimately answers, "I don’t know," counsel is forced to rephrase the question or move on. By only answering questions that you understand, you will help ensure that the testimony you give is accurate and not misleading.

Compound Questions
Frequently, attorneys attempt to confuse the expert at deposition by asking compound questions; that is, two questions combined. Sometimes the question is asked in a stream of consciousness manner that is difficult to comprehend, let alone answer accurately. When faced with such questions, appropriate responses include: "Counsel, you have asked several questions. Can you simplify the question so I can answer it accurately?" and, "Counsel, I’m sorry, I don’t understand the question. Could you please rephrase it?"

Example 6.50

Q: Well, I guess what I’m having trouble with is you have concluded that he’s malingering, there’s nothing wrong with him. Yet on a test, for instance, that tests the ability of a person to be conceptual, he gives an answer which in and of itself you didn’t think showed malingering. I’m trying to understand how he has all these difficulties and how you come to the conclusion that the answers that he gave that were incorrect show malingering.

A: Counsel, you have asked several questions. Can you simplify the question so I can answer it accurately?

Lesson: The expert provided a good response to counsel’s question.

Example 6.51

Q: In those cases where there was one for the plaintiff or the treating doctor and the second for a defense neuropsychologist, the fact that the test results-you determined the test results were invalid because there’s no-not that consistency, does that invalidate the first testing? Can you determine-if you see two inconsistent tests, does that mean both are invalid or the first may be valid and the second invalid?

A: That’s a complicated question to which I don’t have a definitive answer. I can say that on many of the tests the average scores for the first testing and the second testing were not significantly different; in other words, they did about equally as well. Although, I have to make clear that the scores on the second testing, while not significantly different statistically, did tend to be a little lower than the scores on the first testing. And looks like-it would look like that under pressure of litigation with the second testing coming up, perhaps when trial was coming close or something of that sort, that these people were just not able to put forth quite as good a performance as they did on the first testing. But at the same time the scores were generally-they were not strikingly different. The inconsistency, the intraindividual inconsistency were the striking elements of differences between the two testings.

Lesson: A better answer might have been, "I don’t know." As you might expect, the answer given opened up several new areas of inquiry.

"I Assume"
You should not make unfounded or unsupported assumptions in an attempt to answer a question. If you can’t answer or don’t know the answer, say so. Expert witnesses need not and should not make unsupported or unsubstantiated assumptions in an attempt to answer questions at deposition.

Example 6.52

Q: Does the computer program have the capability of printing out a master index of all of the crash tests?

A: I don’t know, but I would assume that some computer person set this system up and can go in and generate a list of all of the data in there….

Lesson: Assuming in a case like this is akin to guessing and should be avoided. A better answer might have been, "I don’t know."

_____________________________________________________________

Return to Novemeber 2001 Newsletter