Timing Is Everything: How Early Retention of Expert Consultants Can Make Or Break Your Construction Claim

Whitney T. Judson | Kilpatrick Townsend & Stockton | April 3, 2019

Resolution of construction disputes oftentimes involves the unravelling of complex issues, and requires the analyses and opinions of expert witnesses in various industries related to the project. For these reasons, retaining an expert consultant as soon as litigation is imminent can truly be a difference-maker in a party’s pursuit or defense of construction litigation claims.

Early retention of a non-testifying expert can be invaluable to a potential party to a construction dispute. Instead of offering testimony in any hearings connected to the dispute, an expert consultant will essentially join the party’s litigation team to assist in preparing and shaping the party’s claims and defenses. As soon as a party anticipates litigation—whether it is after receiving a letter from an attorney threatening litigation, or immediately following the rejection of a claim—a consulting expert can begin reviewing relevant documents and forming conclusions regarding causation, fault, and damages related to the dispute. As facts and issues continue to develop on the project, the consulting expert will be on hand to analyze and form opinions in real time. This is incredibly advantageous to a potential party to a construction dispute because the consultant has the unique ability and knowledge to assist attorneys very early on in formulating pointed written discovery requests and deposition questions and topics that will most effectively support the party’s claims and defenses.

If the construction dispute advances to mediation, a party with a consulting expert already on hand is again at an advantage because the consultant can assist the legal team in presenting strong evidence at mediation that most accurately quantifies and assesses damages, and that most effectively attacks the claims of the opposing party. This added layer of expertise, accuracy, and credibility at such an early stage in the dispute may very well motivate the opposing party to actively pursue settlement, which saves all parties involved time and expense. If the construction dispute moves into the litigation process, a non-testifying expert consultant can assist the legal team in selecting an expert witness who will testify at hearings on behalf on the party. The consultant, as an expert in the field and as someone who has been analyzing the unique issues and disputes on the project since the moment litigation was anticipated, is well-positioned to assist the attorneys in reviewing the work and vetting the credentials of potential testifying expert witnesses. Once an expert witness is chosen, the legal team may have the consultant use his or her expertise and long-term knowledge of the project to inspect the expert witness’s analyses, conclusions, and opinions for accuracy and reliability.

Many jurisdictions across the U.S. offer a qualified privilege for the thoughts and opinions of non-testifying expert consultants retained specifically in anticipation of litigation, unless the party seeking discovery can demonstrate “extraordinary circumstances” that make it impractical for the seeking party to discover facts or opinions on the same subject by other means.[1] If all requirements of the qualified privilege are met, a potential party to a possible construction dispute will likely not be required to produce the studies, analyses, opinions, or even the identity of its non-testifying expert consultant.[2] Preserving this qualified privilege is highly important because the consultant’s findings and opinions may possibly prove to be unfavorable to the legal positions taken by the party that hired the consultant. If the privilege does not apply, a party may be required to produce all of the consultant’s opinions and analyses to the opposing party—even those that may possibly prejudice the hiring party’s claims.[3]

To best utilize the leverage and advantages that a non-testifying consultant can offer, a party should retain legal counsel who is keenly aware of the role timing plays in expert retention. While it is certainly advantageous to hire a non-testifying expert at the earliest moment possible in the construction litigation process, the expert’s opinions likely will not be privileged if the expert’s retention precedes the date of anticipated litigation.[4]Jurisdictions across the country may differ on which facts and circumstances trigger a dispute’s “anticipation of litigation” date, so it is important to consult legal counsel on the specifics of your jurisdiction before hiring a consultant. Generally, however, the anticipated litigation date is the date where the parties to the dispute become aware that litigation may be imminent. It is not necessary that a lawsuit be filed for parties to reasonably anticipate litigation. However, anticipation of litigation can occur when an actual or a potential claim on the project presents itself, so that the hiring of a consultant may be fairly regarded as the party’s anticipation of, and preparation for, possible litigation.[5] Speaking with legal counsel experienced in construction litigation matters, including the hiring of expert witnesses and consultants, is helpful to any party who wishes to successfully prove claims or assert defenses in a construction dispute.

Application of Frye Test to Determine Admissibility of Expert

David Adelstein | Florida Construction Legal Updates | February 2, 2019

Florida went back to the Frye test/standard, instead of the Daubert test utilized in federal court, to determine the admissibility of expert testimony.  The Frye test is more favorable to plaintiffs because it applies when an expert renders an opinion based on new or novel scientific principles.  See D.R. Horton, Inc. v.  Heron’s Landing Condominium Ass’n of Jacksonville, Inc., 44 Fla.L.Weekly D109b (Fla. 1st DCA 2018) (“The supreme court has described the Frye test as one in which the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where the experts in the field widely share the view that the results are scientifically reliable as accurate. Stated differently, under Frye, the proponent of the evidence has the burden of establishing by a preponderance of the evidence with the general acceptance of the underlying scientific principles and methodology.  However, as stated, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific principles.”). 

In D.R. Horton, Inc., a condominium association sued the developer and general contractor (same entity) for construction defects that included claims in negligence, violation of building code, and breach of statutory warranties.  The developer/general contractor moved in limine / to strike the association’s experts under, at the time, a Daubert analysis, but which became a Frye analysis during the pendency of the appeal.  The expert opined as to construction defects and damage and the appropriate repairs – really, no different than any construction defect dispute, from what it appeared. The trial court denied the motion and during trial the experts testified and a sizable damages judgment was entered against the developer/contractor prompting the appeal.  One issue on appeal was the admissibility of the expert’s opinion.  The appellate court noted that a Frye analysis is not necessary because the experts used a scientifically reliable and peer-reviewed methodology.  

A smart tactic, and I mean SMART tactic, that the association’s counsel seemed to utilize was to engage a third-party engineer to testify during a hearing that the methodology used by the association’s experts was industry standard methodology and generally accepted. Thus, the opinions were not based on new or novel scientific principles and the appellate court affirmed the trial court’s denial of the contractor/developer’s motion in limine.

Trial Courts Wrestle with Expert Testimony and Daubert at Class Certification

William DeVinney | Baker & Hostetler | March 19, 2019

Expert testimony plays a critical role in nearly all putative class actions, including at the class certification stage where parties rely on expert evidence to address the requirements of Federal Rule of Civil Procedure 23. The Supreme Court has repeatedly held that trial courts must look beyond the pleadings and conduct a searching inquiry to resolve factual disputes about Rule 23’s requirements. But the Supreme Court has not explicitly held whether that searching inquiry requires expert testimony to satisfy the Daubert requirements before being considered in deciding a motion to certify. In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court noted that “the District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings.” 564 U.S. 338, 354 (2011). The Supreme Court expressed skepticism about that holding but did not reject it outright: “We doubt that is so.” Id. As we wrote here, the Supreme Court again addressed expert testimony at the class certification stage in Comcast v. Behrend, 569 U.S. 27 (2013), but deferred the specific question of whether that evidence must satisfy Daubert in order to be considered. Id. at 35 (Ginsburg, J., dissenting).

The lack of explicit guidance from the Supreme Court has left lower courts to determine whether, and how, to apply Daubert at the class certification stage. The Second, Third, Fifth and Seventh Circuits all require that expert testimony be admissible under Daubert in order to be considered. See In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015); In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 129 (2d Cir. 2013); Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 812 (7th Cir. 2012); Unger v. Amedisys Inc., 401 F.3d 316, 319 (5th Cir. 2005). The Eighth and Ninth Circuits, however, impose less stringent requirements. The Eighth Circuit, in In re Zurn Pex Plumbing Products Liability Litigation, held that class certification rulings are “inherently preliminary” and thus that expert testimony, to be considered at the class certification stage, need not be admissible at trial under Daubert. 644 F.3d 604, 613 (8th Cir. 2011). Rather, only a “focused Daubert analysis which scrutinize[s] the reliability of the expert testimony in light of the criteria for class certification and the current state of the evidence” is needed. Id. at 614. Similarly, the Ninth Circuit held that “a district court should evaluate admissibility under the standard set forth in Daubert … [b]ut admissibility must not be dispositive.” Sali v. Corona Regional Med. Ctr., 909 F.3d 996, 1006 (2018). Rather, “the Daubert inquiry should go to the weight that evidence is given at the class certification stage.” Id.

The United States District Court for the Western District of Pennsylvania recently wrestled with the practical aspects of applying Daubert at class certification in Cole’s Wexford Hotel, Inc. v. Highmark, Inc., No. 10-1609, 2019 WL 988655 (W.D. Pa. Mar. 1, 2019). The plaintiff alleged defendants violated the Sherman Act by conspiring to monopolize the markets for health insurance and health care. The plaintiff moved for class certification and submitted expert testimony to show that it could prove class-wide antitrust impact and damages. In response, the defense presented expert evidence challenging the reliability and methodology underlying the plaintiff’s expert’s testimony.

During the class certification hearing, the defendant denied it was “challenging [the plaintiff’s expert’s] report and testimony under Daubert” and also argued that a Daubert analysis was not required for the court to decide the motion. 2019 WL 988655, at *2. Rather, the defendant argued the court could resolve factual disputes between the dueling experts without excluding the plaintiff’s expert under Daubert. The court, however, disagreed on both counts. First, the court found that the defendant’s challenge was, in effect, a Daubert challenge because the defendant presented its expert “to prove … that the proposed methodology set forth by [the plaintiff’s expert] is not reliable.” Id. at *5.

Second, the court held that it was required to resolve any Daubert challenge before it ruled on class certification. The court refused to “assume [the plaintiff’s expert’s] opinions are admissible [under Daubert] in order to decide the motion to certify a class.” 2019 WL 988655, at *6. Thus, the trial court held that it “must undertake a rigorous analysis of the evidence, which includes a threshold determination under Daubert about whether the evidence is admissible at trial.” Id.

But because the parties had not briefed the Daubert requirements prior to or along with the class certification motion, the court denied the plaintiffs’ class certification motion as premature. The court informed the parties that it would issue a briefing schedule and set a Daubert hearing. Id. at *7. The court acknowledged that postponing the decision would delay the case and increase the expense to the parties. Id. But the court found no alternative because it “cannot resolve the motion to certify class without first conducting a Daubert inquiry.” Id.

The takeaway from Cole’s Wexford is threefold. First, know the Circuit law on challenging expert testimony at class certification. Second, counsel and the court should discuss the court’s expectations for timely raising and resolving challenges to the reliability or methodology of expert testimony relevant to class certification. Third, a court may consider any challenge to the reliability or methodology of expert evidence to be a Daubert challenge, regardless of whether it was intended to be, and thus counsel should be prepared to make the challenge under the Daubert rubric.

The Supreme Court of Texas Clarifies That a Party Can Testify as an Expert Witness without Waiving the Attorney-Client Privilege

Donnie Apodaca | Avoiding Insurance Bad Faith | March 12, 2019

Litigation usually involves complex issues related to technology, products, or business processes. In many cases, clients are the best subject-matter experts of their craft. Nevertheless, attorneys are sometimes hesitant to designate a client or a client’s employee as an expert witness for fear of waiving attorney-client privilege. In a recent decision, the Supreme Court of Texas addressed this very issue and held that the attorney-client privilege remains unscathed when a party (or its corporate representative) is designated as a testifying expert witness. See In re City of Dickinson, — S.W.3d —, No. 7-0020, 2019 WL 638555 (Tex. Feb. 15, 2019).

Background

City of Dickinson concerned whether a property insurer underpaid insurance benefits related to a Hurricane Ike claim made by the City of Dickinson. In responding to the City’s motion for summary judgment, the property insurer filed the affidavit of its corporate representative who was also a senior claims examiner. Unsurprisingly, the affidavit offered factual and expert testimony in opposition to the dispositive motion. The City later learned the corporate representative exchanged emails and drafts of the affidavit with defense counsel.The City then moved to compel the production of the emails and all other information “provided to, reviewed by, or prepared by or for” the corporate representative in anticipation of his expert testimony. Naturally, the property insurer claimed the documents were protected by the attorney-client privilege. The trial court, however, disagreed and granted the motion to compel. The intermediate appellate court reversed, finding the information sought was privileged.

The Supreme Court of Texas’s Decision

On appeal, the Court addressed whether Texas Rules of Civil Procedure 192.3 and 194.2 barred the property insurer from asserting attorney-client privilege. Rule 192.3 concerns the scope of discovery and provides that, with respect to a testifying expert, “[a] party may discover . . . all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying expert’s testimony[.]” In construing Rule 192.3, the Court noted that the use of the word “may” merely meant that an opposing party could discover the information—not that it had an absolute right to discover it when a privilege applied. The Court also noted that another subpart of Rule 192.3 expressly precluded the discovery of privileged information.

Rule 194.2 concerns the content of a discovery tool called “requests for disclosure” and provides that, with respect to testifying expert, “[a] party may request disclosure of . . . all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony[.]” As with Rule 192.3, the Court explained that the word “may” simply meant that a party could request the discovery. Another subpart of the rule expressly allowed the trial court to limit requests for disclosure, and the official comment to the rule made clear that “requests for disclosure under Rule 194 are subject to the attorney–client privilege just like the provisions of Rule 192.”

The Court also rejected the City’s argument that the Texas Rules of Civil Procedure should be interpreted the same as the pre-2010 Federal Rules of Civil Procedures because they were modeled after them. The Court summarily rejected the argument because the comments to the rules where substantively different.

The Court also distinguished its decision in In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434 (Tex. 2007). In that case, the Court held that a party was required to produce an investigator’s report provided to party’s expert. The Court explained that Christus Spohn only addressed the work-product privilege—not undisputed attorney-client communications. The Court explained that its holding was consistent with prior decisions, which “underscore the status of the attorney-client privilege as ‘quintessentially imperative’ to our legal system” and that “[w]ithout the privilege, attorneys would not be able to give their clients candid advice as is an attorney’s professional duty.”

Takeaway

City of Dickinson provides clarity in a previously unsettled area of Texas law. Further, it reinforces the importance of the attorney-client privilege and clarifies that a client does not have to choose between testifying as an expert at trial and invoking attorney-client privilege. Going forward, we expect the primary party-expert dispute to center on whether materials provided to the party-expert constitute discoverable work product under Christus Spohn or protected attorney-client privilege under City of Dickinson. Indeed, as the Court noted in its opinion, the two privileges are often conflated.

Deposition Preparation

Robert J. Franco | Franco Moroney Buenik

Depositions are probably the worst experience faced by those in the construction industry. Apart from the annoyance and distraction, people do not like sitting in an office answering questions.

A deposition is a formal legal proceeding. It is neither a “statement,” nor an “interview.” Before the deposition begins, you will be sworn to tell the truth by the court reporter, who is a notary public authorized to administer oaths.

One or more of the other lawyers in the case has requested your deposition. The typical purpose for taking a deposition are: 1) to prove something through the witness’ testimony; 2) to evaluate the opposing party as regards his credibility, appearance and demeanor; 3) to educate oneself about the opposing party’s position on the facts; and 4) to lay a foundation for impeachment at trial. The last item requires some explanation.

If you answer a certain question in a certain way at your deposition, you will be expected to answer it the same way at the trial. If you do not, the jury will probably conclude: 1) that you lied during the deposition, 2) you are lying at trial, or 3) you are not a reliable witness because you “changed your story” from one time to another. Therefore, you must take great care to ensure that each answer you give is accurate, since you will have committed to that answer, right or wrong. However, if you realize during the deposition that any answer you have given is inaccurate, correct the error immediately. If you realize an error after the deposition has been completed, you should notify your lawyer immediately.


The deposition proceeds on questions and answers. After you are sworn, one of the other attorneys, usually opposing counsel, will begin to ask you questions. After he has completed his questioning, each of the other attorneys in attendance is entitled to question you as well. After all the attorneys have finished their questions, the deposition is concluded. Thereafter, the court reporter, with the aid of a computer, will have all of the questions and answers transcribed into a booklet or transcript. The attorneys usually do purchase copies of the deposition transcript for their own use. Your attorney will likely purchase a copy of your deposition transcript and will make it available to you.


Your deposition will probably be taken in the conference room or library of the office of one of the attorneys who are involved in the lawsuit. The people who are usually present during the deposition are the witness, the court reporter and the attorneys for all the parties. Anyone who is a party to the lawsuit is also entitled to be present, but is not required to be there. People who may be called to testify at trial who are not parties are generally not entitled to be present. If for any reason you would like for someone to be in attendance with you at the deposition in addition to me, advise your lawyer as this can often be arranged by agreement.


If any special preparation for the deposition is required other than a pre-deposition conference, your lawyer will advise you. Aside from this, the best preparation for your deposition is to relax, avoiding undue tension or anxiety about the deposition procedure.

ADVICE


The following advice is usually helpful to people who are about to give a deposition. This is general advice and is not tailored to apply to you or your case in particular. If there is something special about you or your case that requires attention, your lawyer will address this in the pre-deposition conference, where he will discuss the facts of your case and your anticipated testimony.

  1. TELL THE TRUTH.

    You will be under oath and legally required to tell the truth. If you do otherwise, you will be guilty of perjury, which is a felony criminal offense. If you lie, this will probably be exposed by adverse counsel and the results will be disastrous for you. Moreover, telling the truth will relax you by making you comfortable in your testimony.
  2. MAKE SURE YOU UNDERSTAND THE QUESTION BEFORE YOU ATTEMPT TO ANSWER IT.

    If for any reason you do not understand the question, do not answer it. When confronted by a question you do not understand, you should say: “I do not understand the question,” or “Your question is too vague (or unclear, or ambiguous, or broad),” or “Your question is too long and complicated,” or “I don’t understand the words you are using,” or whatever similar response is appropriate under the circumstances. The lawyer will explain the question or rephrase the question as many times as necessary until you understand the question. You should never be embarrassed about having to respond to a question in this way.

    Once you answer the question, it will be assumed that you understood it. If you did not understand the question, it is inevitable that your answer will be wrong. When opposing counsel demonstrates at trial that the answer you gave during the deposition was wrong, as he probably will, your credibility will suffer.

    As part of this, you should seek to avoid overly broad questions, such as “tell me what happened here.” Do not be afraid of asking the questioning attorney what he means, to clarify his questions, or to break-up a compound or two-part question. Make the lawyer ask specific questions, and do not answer anything other than what is asked. Do not speculate what the interrogator is seeking. If you listen to the precise question being asked, and only listen to that question, you will be better served.

    Beware of questions which are stated in a strange manner. Consider the following: “Isn’t it true that you are not an OSHA trained safety inspector?” If it is true that you are not OSHA trained, is the answer “yes” (meaning you are not OSHA trained) or “no” (it is not true that you are not, not OSHA trained). In such instances, do not be afraid to clarify the question.
  3. GIVE A NARRATIVE ANSWER WHERE POSSIBLE.


    At trial, if you are evasive, the jury will probably conclude that you have something to hide, or that you are fearful that direct answer to the question will prejudice you. Evasion equates with cunning or deceptiveness in the minds of most jurors. By contrast, direct answers, even those that may involve some sort of an admission on your part, will give the jury the impression that you are an honest, candid and fair person. The jury’s perception of you will almost certainly have an effect on the outcome of the case.

    In most states, the only portion of your deposition which may be read to a jury is that testimony which is inconsistent with your trial testimony. With respect to direct answers, be advised that they make for very good impeachment. Narrative answers make for limited impeachment.

    Assume for example that a witness is testifying in a construction case involving a crane cable which broke due to overloading. Consider the impeachment effect of the different responses:

    Question: Isn’t it true that the cable failed due to your company overloading the crane, which caused the load to fall.

    Answer: Yes.

    As you can see, this response is very direct, and does not allow the witness any latitude. It admits to overloading and causation. Certainly, any attempt to retreat from this response at trial will subject the witness to excruciating impeachment. Instead, consider the following:

    Question: Isn’t it true that the cable failed due to your company overloading the crane, which caused the load to fall.

    Answer: Actually, the crane was not ours, but was leased from a different company which knew about the excessive live load on the crane, we did not actually know that information.

    The answers are similar, but the answers are stated much differently: the first answer having a far greater impeachment value. The second answer gives the witness latitude. Remember, short “yes” or “no” answers tie down the witness. Narrative responses do not. Yes or no answers should be avoided, as they provide for tight impeachment. Do not let a lawyer goad or intimidate you into making a “yes” or “no” answer. Answer the question asked in a short narrative.
  4. DO NOT VOLUNTEER ANY INFORMATION.

    Always give the shortest and most direct answer possible that is truthful and accurate. Do not add anything, even if you think that doing so will be helpful to you position. Keep in mind that one of the reasons that opposing counsel is taking your deposition is to educate himself regarding your knowledge of the facts pertaining to the matters in dispute. Everything he learns at the deposition helps him prepare for trial, which information he will use against you.
    Therefore, you should make the lawyer earn the information he receives by requiring him to ask for information before you provide it to him.

    Your deposition will probably be your first opportunity to meet and confront opposing counsel. It is a natural human tendency to seek to convince the attorney for your adversary that your position is correct and his is incorrect. Therefore, you will have a natural tendency to volunteer information that you think is favorable to you in an effort to convince the attorney of the correctness of your position. However, the lawyer’s job is not to judge the merits of the controversy, but rather to advance the interests of his client. Therefore, no amount of persuasion by you will dissuade opposing counsel from his task. By telling him much about your position or your recollection, whether he asks you about them or not, will help him prepare to attack those points at the time of trial. If the interrogating attorney fails to ask you something that is important and, therefore, fails to find out about it prior to trial, your interests are advanced.

    Remember that the deposition should be cross-examination, where the answer is suggested. This represents adverse counsel’s opportunity to bring out the facts that are favorable to his side of the case. Do not be frustrated that you are seemingly deprived of an opportunity to talk about the things that are favorable to you. At the trial, you will have a full opportunity to tell your side of the story in answer to the direct examination by your own lawyer. You cannot and will not win your case at your deposition. However, you can lose your case at your deposition by volunteering information. DO NOT EDUCATE THE OPPOSING LAWYER.
  5. BE BRIEF.

    While your responses should be brief, the longer your answer, the more you will tend to volunteer information or say something that is likely to damage your position. However, do not sacrifice truthfulness or accuracy for brevity.
  6. DO NOT BE CONCERNED WITH PAUSING BETWEEN THE QUESTION AND ANSWER.

    A deposition transcript cannot measure time. Therefore, do not be concerned with taking your time in answering. Once the deposition is over, the transcript will not reflect the delay. However, this is not the case in video depositions where delays are recorded.
  7. IF YOU DO NOT KNOW THE ANSWER TO A QUESTION, SAY “I DON’T KNOW”. LIKEWISE, IF YOU DO NOT REMEMBER THE INFORMATION YOU ARE ASKED FOR, SAY “I DO NOT REMEMBER.”

    In order to operate efficiently, our legal system must rely on facts, not guesswork. If you attempt to guess, your answer will almost certainly be wrong. Many times, a lawyer will ask a question already knowing the answer, hoping to trap you with an incorrect answer. If you guess, you will be accommodating him. By prodding you to give an answer that is nothing more than a guess, the lawyer will be in a position to discredit your entire testimony by proving that your answers were clearly wrong.

    Do not be embarrassed to say that you do not know or do not remember something. You are not required to know or remember any particular thing about your case. Do not let opposing counsel coerce you into guessing about something by acting as if it is incredible that you do not know or remember it.

    If a particular fact is important, remember that it can probably be proved through the testimony of some other witness, or by a document, or some other form of tangible evidence. Your testimony is only one part of the mosaic that will be assembled at the trial. It is not necessary, therefore, for you to know or remember everything that is pertinent to your case.

    Do not start the answer to any question with the words “I guess” or “I assume.” If you are guessing or assuming, you should be saying “I don’t know,” or “I don’t remember.” Do not assume or presume anything. Stick to the facts and let the jury supply the assumptions and presumptions.
  8. BE PARTICULARLY CAREFUL ABOUT TIMES, DISTANCES, SPEEDS AND LOCATIONS.

    When the lawsuit involves a dynamic transaction, such as an automobile accident, there will inevitably be questions about your estimates of such matters as speed of the vehicles at various times, the time that elapsed between one event and another, the distance that a vehicle covered in a particular time frame, and the locations of various vehicles and other objects at various times. For some reason, people are particularly prone to guess about these things when they really have absolutely no basis for that testimony.

    Time lapses cause the most problems because people tend to grossly over-estimate time, speed and distance. For instance, witnesses will often say that they sat at a red light for five minutes. This is usually impossible. No traffic signal that is working properly will display a continuous red signal for more than about two minutes. Likewise, when asked a question such as “How long was it from the time you saw the other vehicle until the time of the collision?” people will sometimes respond “Thirty seconds,” or even “One minute.” It is rare that the correct answer to such a question will be more than a few seconds. Therefore, on any question involving a time, speed, distance, or location, you should be particularly cautious that your answer is an estimate and not a guess.
  9. BE SINCERE, PATIENT, TOLERANT AND COURTEOUS AT ALL TIMES.

    If you allow yourself to become upset at your deposition, or if you argue with the opposing lawyer, you will focus more on jousting with the opposing lawyer than on the accuracy of your answer. The result will be that your answer will be imprecise, and may be a response that you later regret. Too, lawyers will often bait witnesses, as if they can rile you in a deposition, they believe they will attack and rile you at trial.

    In addition, lawyers generally write reports that summarize witness testimony. Included is a witness evaluation. If you make a poor witness, that will depreciate the effect and impact of your testimony, and will affect the settlement value of the case.
  10. AVOID CONCLUSIONS.

    A fact is something you know based upon personal, first-hand experience. A conclusion is something you have figured out based upon the factual knowledge which you have assembled. You should testify about the former, but you should avoid the latter. The reason for this is that there is a relatively large margin for error in any conclusion, since it is based on less-than-perfect personal knowledge about the facts. Although you may know certain facts that seem to lead to a particular conclusion, other witnesses may know many other facts which, when added to the facts you know, might lead to a completely different conclusion. If you testify to a conclusion you have drawn and it seems to be inconsistent with facts testified to by other witnesses who the jury chooses to believe, then your conclusion will be discredited and the accuracy of your entire testimony will be subject to doubt. You should restrict your testimony to facts about which you have personal knowledge and let the jury draw its own conclusions from all the testimony they hear.
    The purpose of a non-expert deposition is to discover facts, not conclusions or opinions.
  11. DO NOT GIVE AN OPINION UNLESS YOU ARE ASKED FOR ONE. IF YOU DO GIVE AN OPINION, MAKE SURE IT IS A RELIABLE ONE.

    With certain limitations, all witnesses are permitted to testify about their opinions. However, you generally should not have or give an opinion unless you are an expert. It is much easier for a lawyer to attack opinion testimony than factual testimony. Therefore, you should be even more reluctant to volunteer your opinion than to volunteer facts.

    When you are asked for an opinion, the first decision you have to make is whether or not you have an opinion at all. You are not required to have an opinion about anything. If you do not have an opinion regarding the matter about which you are being asked, simply respond by saying that you do not have an opinion. It is difficult to form a reliable opinion on the spur of the moment during a deposition, when conditions are not usually ideal for a calm thought and deliberation. Therefore, do not be embarrassed to say that you do not have an opinion about something.

    If you do choose to express an opinion, or are an expert, pause briefly to think about the matter and assure yourself that the opinion you are about to give will be reliable and defensible. In order to be reliable, an opinion must be based upon:

    1) Adequate, detailed factual information, and

    2) Adequate education, training and/or experience in the area under discussion.

    If either one of these elements is lacking, you cannot express a reliable opinion and should decline to express one. The first part of this test is particularly important as regards hypothetical opinion questions. If you are asked to express an opinion based upon hypothetical facts, the first question you should ask yourself is whether you have been given sufficient factual information in the question to enable you to give a reliable opinion. If you give an opinion based upon broad, vague hypothetical facts, you will be making a great mistake. When confronted by a questions asking for your opinion, you may respond that you do not have an opinion if that is accurate. The question may not contain enough factual information for you to be able to base a reliable opinion on the facts at hand. The interrogating lawyer may then add additional hypothetical facts to his question. These additional facts may or may not make it possible for you to give an opinion. However, you should not be goaded into stating an opinion when you do not have an opinion.

    With respect to documents, do not interpret the writings of other people. You are incompetent to do so. However, you may be called upon to interpret your own writings.
  12. BE CAUTIOUS ABOUT RECOGNIZING ANY PARTICULAR PUBLICATION AS “AUTHORITATIVE.”

    If opposing counsel can persuade you to agree that any particular work is “authoritative,” then he will be entitled to quote passages from it under the guise of asking you if you agree with those passages. What the lawyer is really doing, however, is reading to the jury out of the book in the hope that the jury will believe the statements contained therein. Of course, these quotations, taken out of context, will seem to support his position and to be contrary to yours. Unless the opposing lawyer can persuade you or some other witness who is knowledgeable in the topic at hand that the work is “authoritative,” he cannot proceed to read passages from the book. Therefore, you should never agree that any particular publication is “authoritative” unless you are thoroughly familiar with it and agree with virtually everything in it. Otherwise, you should say that you do not regard the work as “authoritative,” or are unable to make that statement.
  13. DO NOT TESTIFY ABOUT WHAT SOMEONE ELSE TOLD YOU UNLESS YOU ARE ASKED DIRECTLY ABOUT IT.

    You should assume that you are being asked for your knowledge of the facts based upon personal, first-hand information, unless the question makes it obvious that you are being asked for second-hand information. For example, if you are asked what time of the day a particular automobile accident happened and you were not present when it happened, but you have read the police accident report which indicates that it happened at 2:00 p.m., do not give as your answer “2:00 p.m.” Rather, you should say “All I know about that is what I have read,” or “All I know about that is what I have been told.” If the lawyer then wants to pursue the matter, he will ask you what you have read or what you have heard. If you volunteer that information in the first instance, you are implying that you have personal knowledge about the matter under inquiry when you do not. This would be misleading; unnecessarily risking your credibility, since second-hand information often turns out to be wrong. If the second-hand information indeed is wrong, your testimony will have been erroneous.

  14. DO NOT BE AFRAID TO ASK FOR A CONFERENCE DURING THE DEPOSITION.

    If you need to speak with your lawyer, request a break. This is permissible, and is better than venturing into uncharted waters. Sometimes, the opposing lawyer will attempt to intimidate you by stating something to the effect that: “Let the record reflect that counsel and his client are meeting in the hall to discuss their answer to my last question.” However, that statement is not admissible, and will not come into evidence. It is an intimidation ploy, and cannot be used to prejudice you at trial.
  15. DO NOT REFUSE TO ANSWER ANY QUESTION.

    Generally speaking, the law permits opposing counsel great latitude in his cross-examination during a deposition. He is not required to confine his questions to those matters which are strictly relevant to the issues in the lawsuit. Anything that is “reasonably calculated to lead to the discovery of admissible evidence” is fair game during your deposition.

    The decision as to whether or not a particular question is proper is not yours, but rather is for the judge to decide. Therefore, you should not respond to a question by saying that you refuse to answer it, or that it is none of counsel’s business, or by asking what the question has to do with the lawsuit. All of these responses are likely to show that: 1) You are arrogant and rude; or 2) You have something to hide. Obviously, we do not want this.

    If a question is improper, your lawyer will object. If your lawyer does not say anything, you should assume that the question is a proper one that you must answer.
  16. VERBALIZE ALL YOUR ANSWERS.

    Say “yes” and “no,” rather than “uh huh” and “uh uh.” It may be difficult for the court reporter (and the jury) to distinguish between “uh huh” and “uh uh.” You certainly want to be clear whether you meant “yes” or “no.” For the same reason, you should avoid “talking with your hands.” Unless your deposition is taken by video tape, the jury will not be able to see the hand motions you make as you testify. Therefore, you must express your testimony completely in words. When talking about a distance, for instance, say “It was six inches,” rather than holding up your hands six inches apart and saying “It was this far.” Similarly, if you are asked to identify and testify about exhibits, such as documents or photographs, always mention in your answers the exhibit number of the thing you are referring to, so that it will be clear to the jury who hears your testimony what document or thing you are talking about.
  17. DO NOT INTERRUPT.

    The court reporter is unable to take stenographic notes when more than one person is talking at the same time. Therefore, you should let the lawyer completely finish his question before you begin your answer. Do not anticipate what the question will be and cut the lawyer off mid-sentence, even where it is perfectly clear from his first few words what he is going to ask. If you do interrupt, it will be necessary for the lawyer to stop you and start the question all over again. This will prolong the deposition, make the court reporter unhappy, and make your testimony difficult to follow.
  18. BEWARE OF THE QUESTION THAT ASSUMES SOMETHING TO BE TRUE THAT IS NOT OR MAY NOT BE TRUE.

    You should not attempt to answer any question that contains a statement or assumption of fact which you know or believe not to be true. The classic example of such a question is: “When did you stop beating your wife?” The question assumes that you have beaten your wife in the past. If this is not true, then you should say something like “I cannot answer that question the way you have asked it.” Do not, however, volunteer what the problem with the question is. If the lawyer wants to know that, he will ask you. If he does ask, your answer in this particular situation would be something like “The question assumes that I have beaten my wife in the past, which is not true.” If you attempt in the first instance to give a substantive answer to a question like “When did you stop beating your wife?” your answer will probably sound like a tacit admission that the statement or assumption of fact contained in the question is correct.
  19. RELAX, BE COMFORTABLE AND BE YOURSELF.

    While giving your deposition is not likely to be the most pleasant experience you will ever have, it need not be unpleasant either. Forget everything you have ever seen on television or in the movies. The other lawyers will not be permitted to abuse you, or argue with you. If your lawyer feels that you are being abused, he will terminate the deposition. The vast majority of attorneys treat the opposing party and witnesses with courtesy and respect.

    While hopefully attempting to follow all of the advice given herein, you should try to be yourself during the deposition. Do not attempt to put on an act or pretend to have knowledge or personal qualities that you do not have. Do not attempt to use words or phrases that do not come naturally to you. Remember that the primary audience at whom your testimony is aimed is the jury, which is composed of laymen. The jurors are neither judges nor lawyers and will not expect you to speak in Latin phrases or use any kind of special terminology. If you attempt to change your personality or your mode of expression just for the deposition, your testimony will appear stilted and awkward and, more importantly, it will lose the quality of genuineness which is required in order for your testimony to be credible. Within the bounds of good taste and common sense, you should express yourself in language that is usual and customary for you.
  20. ASK FOR A BREAK IF YOU NEED ONE.

    You are entitled to a break in the deposition at any time and for any reason. If you need to go to the rest room, make a telephone call, or take care of any kind of personal business, do not hesitate to ask for a break. You will not be a good witness if your mind is on something other than the questions being asked. Take as many breaks as you need during the deposition.

    You should always ask for a break if you become mentally fatigued and begin to have trouble concentrating on the questions.
  21. DO NOT SPECULATE

    Lawyers will often ask you to speculate. The short answer is that the lawyer placed you under oath to tell the truth about the facts you recall. Asking you to speculate asks you to go beyond the facts, and delve into the unknown. In essence, this calls for you to violate your oath and go beyond the facts.
  22. OBJECTIONS

    During the course of the deposition, your lawyer will likely voice objections, and will tell you if you should refuse to answer.
  23. REHABILITATION

    If there is testimony elicited from you which is damaging to our case, your lawyer may ask you questions to clean-up or “rehabilitate” you and your testimony.
  24. DOCUMENTS AND DEPOSITION PREPARATION

    Do not be surprised if you are asked about documents you produced as part of the written discovery process. You should be prepared to answer questions about the steps you took to identify documents responsive to the discovery request, the privilege log, and the documents produced. Generally, you should not answer any questions about documents unless the document is in front of you.
    You will also be asked about what you did to prepare for the deposition, including everything you reviewed, all of the people you spoke with, and other preparation. Your discussions with your lawyer are privileged and are not discoverable.
  25. SIGNATURE

    At the conclusion of your deposition, you will be given the opportunity to declare your intent to read the transcript, checking for errors. This is called “reserving” signature. While you cannot change the substance of your testimony, you can note errors in the transcript.
    Alternatively, you may “waive” signature, and accept the transcript as it is written.
    CONCLUSION

    If you have any questions about the nature or purposes of a deposition, or about any of the foregoing advice, please do not hesitate to ask them during the pre-deposition conference.
    In terms of deposition mechanics, the single most important points are for you to tell the truth, to listen to the question and to only answer what is asked. Above all else, ensure that you are relaxed