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Law 101: Legal Guide for the Forensic Expert

Answering Questions Effectively in Deposition

Answering Questions Effectively in Deposition
National Institute of Justice (NIJ) (see reuse policy).

Some examples of good and bad answers to deposition questions will help the expert prepare and hone the expert's ability to respond more effectively. The following are poor answers in this deposition involving a personal injury civil dispute:

Example 1:
Question: Mr. Witness, please state your name.
Answer: My name is Harvey Doright. I live at 1224 Main. My phone number is (707) 333-8811. My consulting company is known as Doright Consulting.

Comment: The witness has violated several cardinal rules of deposition examination, right from the start:

  • He did not listen carefully to the question he was asked.
  • He answered the direct question he was asked and then continued talking.
  • He responded with much more information than he was asked to provide.
  • He tipped off the opposing counsel that he will probably continue to listen carelessly to further questions and respond with excessive detail — all to the possible detriment of the case.

Example 2:
Question: Did you inspect the parking lot?
Answer: I did, and I will tell you there is no way that the parking lot complies with the Uniform Building Code, the architect's design, or the National Safety Council requirements.

Comment: The correct answer would have been "Yes." Mr. Doright's answer opens up a whole series of questions about what items and evidence he may (or may not) have examined. In his desire to be the consummate expert, Mr. Doright tries to tell all that he knows. If he had not disclosed the three items on which he relied, examining counsel might never have asked about them. As a result of this answer, opposing counsel may pursue further avenues of questioning regarding these three items for which Mr. Doright may be insufficiently prepared. If it were shown that the three items did not support Mr. Doright's conclusion, some back-pedaling would then be required at trial.

Example 3:
Question: Mr. Doright, do you have an opinion as to why Mrs. Smith fell in the parking lot?
Answer: Yes, I do. She fell because the concrete parking bumper she tripped over was not painted the required color. It was dark between the cars, and she had her arms full of groceries. She followed her daughter into the parking lot. The daughter stepped over the parking bumper. Mrs. Smith failed to see the concrete bumper, tripped, and fell. There is absolutely no question in my mind that failure of the store to paint the parking bumper yellow was the direct cause of the fall.

Comment: Mr. Doright has done quite a number of things wrong here. The correct answer is simply "Yes." Instead of just answering the question with a simple "yes," he proceeded to explain everything he knew about the subject. Each separate piece of information he volunteered constitutes a trail for the skillful examiner to follow. Any of these now-additional lines of questioning could lead to further testimony that might question or discredit the expert's opinions, conclusions, and methodology and create reasonable doubt.

The next thing the witness did wrong was to state his opinion in absolute terms. He forgot that anything is possible. He also forgot that all he has to state is his opinion based upon a probable cause, not an absolute one. He also opened up the defense of contributory or comparative negligence by noting that Mrs. Smith failed to see what her daughter clearly saw.

Example 4:
Question: Is it possible, Mr. Doright, that you've made a mistake in your opinion?
Answer: Absolutely not, and I resent you even suggesting that idea. I did my work. I made my measurements. I studied everything there was to study. I've been in this field for 35 years. Young lawyers don't know anything. I don't know why I have to stand for these insulting and insidious innuendoes.

Comment: Mr. Doright has now violated several more rules of good testimony procedure. He has lost control, allowed himself to get angry with the attorney, insulted him, and suggested his own infallibility. In all respects, he has done no service to himself or his case.

The following are examples of better answers to the questions that the examining counsel asked Mr. Doright. After proper preparation and some video practice and rehearsal, Mr. Doright becomes a much improved witness.

Example 1:
Question: Mr. Doright, do you have an opinion as to why Mrs. Smith fell?
Answer: Yes.

Example 2:
Question: On what do you base your opinion?
Answer:Could you clarify that question?

Example 3:
Question: What is the basis for your opinion?
Answer:My investigation of the case.

Comment: At this point, examining counsel has a choice. The answer can either be accepted or probed further. A good examiner would probe further, but if it is getting late and the witness seems to be in control of the examination, the attorney may move on to something else. That would be beneficial to Mr. Doright's case and his position as a testifying expert. He can tell all that he knows at trial but not at deposition.

Example 4:
Question: Mr. Doright, in light of all the circumstances of this case, and with a view toward your testimony at the time of trial, just what is it that you are saying, and how do you explain your position at this time?
Answer: I don't understand your question; it is really two questions.

Example 5:
Question: Which part did you not understand?
Answer: If you could break the question down into separate questions, I'll try to answer each one as accurately as I can.

Comment: This shows that Mr. Doright understands the process of complex and compound questions. Numerous questions, some of which were vague and unclear, were built into the attorney's long and rambling question. Doright did right by politely asking the attorney to break the question down into separate parts.

Example 6:
Question:Mr. Doright, did you talk with anyone about your testimony before coming into this deposition room today?

Example 7:
Question:Who did you talk to?
Answer: I talked to the attorney who engaged my services.

Example 8:
Question: What did he tell you to say?
Answer: He told me to be truthful with you in all respects.

Comment: The attorney will have little success with this question-and-answer exchange. He should move on to something else. From that response, Mr. Doright has done right again and has been truthful and honest in his answer.

Example 9:
Question: Mr. Doright, what do you think could have been done to remedy this parking lot situation?
Answer: Are you asking for my opinion?

Example 10:
Question: I want to know what you think.
Answer: My opinion is that, in all probability, standard lighting and painting would have avoided the situation.

Comment: The attorney is trying to obtain a guess or speculation. Mr. Doright, sensing that trap, persists in rendering his opinion. In trial, that opinion will be enhanced and embellished on the basis of reasonable scientific and technical probability.

Example 11:
Question: Mr. Doright, are you absolutely certain the parking bumper was not painted yellow at the time of Mrs. Smith's fall?
Answer: I'm reasonably certain that was the situation.

Example 12:
Question: Isn't it possible that the paint wore off between the time of her fall and the time of your inspection?
Answer: Many things are possible, sir, but in my opinion, that did not occur here.

Comment: The attorney is attempting to lock Mr. Doright into an absolute position, knowing that given the rules of human conduct there are few absolutes. Because the witness framed the answer in terms of his investigation and reasonable probability, he avoids the trap.

Example 13:
Question: Is it not true, Mr. Doright, that part of the responsibility for this fall must be squarely placed on Mrs. Smith for not having watched her step?
Answer: If I am not mistaken, that decision is not for me to make.

Comment: Here, Mr. Doright has shown his careful preparation of the case and his recognition of the legal principles involved. His field of expertise and technical examination does not extend to the ultimate weighing of comparative fault or contributory negligence. He knows that matters of the claimant's contributory or comparative negligence are jury questions and not for determination by the design-and-construction expert.

Example 14:
Question: Is it correct that the amount of light available at the site of Mrs. Smith's fall is measured by your guesstimate?
Answer: No, that is not correct.

Example 15:
Question: Well, how is the light measured?
Answer: By use of standard test equipment that measures light intensity in terms of candlepower.

Comment: At this point, Mr. Doright is tempted to, but did not go into, techniques of measurement, description of standardization equipment, recognized scientific procedures, methods by which lighting was tested, or precautions he took to make sure the test was done at the same time of day that Mrs. Smith fell. If examining counsel wishes to go into those items, he will. If not, the matter is best left for sponsoring counsel to explore at trial.

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