About Court Reporting

Arbitration | Discovery | Depositions | Mediation

Arbitration

A non-court procedure for resolving disputes using one or more neutral third parties -- called the arbitrator or arbitration panel.

Arbitration uses rules of evidence and procedure that are less formal than those followed in trial courts, which usually leads to a faster, less-expensive resolution.

There are many types of arbitration in common use: Binding arbitration is similar to a court proceeding in that the arbitrator has the power to impose a decision, although this is sometimes limited by agreement -- for example, in "hi-lo arbitration" the parties may agree in advance to a maximum and minimum award.

In non-binding arbitration, the arbitrator can recommend but not impose a decision. Many contracts -- including those imposed on customers by many financial and healthcare organizations -- require mandatory arbitration in the event of a dispute. This may be reasonable when the arbitrator really is neutral, but is justifiably criticized when the large company that writes the contract is able to influence the choice of the arbitrator.

Discovery

A formal investigation -- governed by court rules -- that is conducted before trial. Discovery allows one party to question other parties, and sometimes witnesses. It also allows one party to force the others to produce requested documents or other physical evidence.

The most common types of discovery are interrogatories, consisting of written questions the other party must answer under penalty of perjury, and depositions, which involve an in-person session at which one party to a lawsuit has the opportunity to ask oral questions of the other party or her witnesses under oath while a written transcript is made by a court reporter.

Other types of pretrial discovery consist of written requests to produce documents and requests for admissions, by which one party asks the other to admit or deny key facts in the case. One major purpose of discovery is to assess the strength or weakness of an opponent's case, with the idea of opening settlement talks. Another is to gather information to use at trial.

Discovery is also present in criminal cases, in which by law the prosecutor must turn over to the defense any witness statements and any evidence that might tend to exonerate the defendant. Depending on the rules of the court, the defendant may also be obliged to share evidence with the prosecutor.

Depositions

Once you are involved in a lawsuit, you quickly realize that most TV court dramas are nothing like reality. The simple fact is that most cases settle long before a judge or jury ever even know the case existed.

The idea is to posture your case so that it is more cost effective for the other side to settle now than to proceed to trial. One of the best posturing tools a lawyer has is a deposition.

The purpose of this article is provide some tips on how to be an effective witness during a deposition. This information is not intended as legal advice and should not be taken as legal advice.

But first, here is an explanation of what a deposition is and how it works.

What is a deposition?
A deposition is a formal legal proceeding in which the oral testimony of a witness is recorded under oath. Depositions are private. They usually occur in a lawyer’s office. The people present are the lawyers, the parties, and a court reporter.

How does it work?
First, you (the person giving the testimony) are sworn in. Then the lawyer taking the deposition proceeds to ask questions related to the case. You answer the questions. Sometimes a lawyer may interrupt with an objection. If that is your lawyer, he/she may instruct you not to answer a question. After the first lawyer has asked its questions, any other lawyers in the case gets to ask questions and clarify any problems.

What is the purpose of a deposition?
There are a number of reasons to take depositions. First, it provides the parties a chance to discover facts they otherwise would not know. Once educated, both sides can approach settlement with a more realistic view. Second, depositions allow lawyers to evaluate the strength of a case and a witness’ ability to testify. Although a witness may be telling the complete truth, due to the intimidating environment, he may sound unsure of himself. In contrast, a confident witness increases the strength of his testimony. Third, depositions can be used to record a person’s testimony. If the person later changes his story, the lawyer can produce the record of the deposition and point out the inconsistency. Also, depositions can be used to record the testimony of someone who may die before trial or move far away.

With that foundation, here are some basic rules which every witness should follow:

Tell the truth. Remember that you are under oath just as if you were testifying at trial. Do not delay answering by trying to figure out whether your answers will help or hurt either side, just answer the questions to the best of your memory.
Listen to the entire question. Questions with traps often include half-truths, assumptions, or facts which you do not know to be true and facts of which you are unsure. Do not allow the examiner put you in the position of adopting half-truths or unknown facts.
Think before you speak. Give yourself a few seconds before answering each question. This allows your lawyer to make an objection, if necessary, and allows you to think through your answer.
Answer the question you are asked (and none other). The examiner is entitled to an answer to the question he asks, but only to that question. Do not provide the lawyer with extra information, just the information he requests. Do not attempt or expect your answer to persuade the examiner with your answer. Remember that your lawyer has the opportunity to ask you questions later.
Do not answer a question you do not understand. It is up to the examiner to ask good questions; if he cannot, do not help him. Do not help the examiner by saying “do you mean X or do you mean Y.” (If you do, expect to be asked both of these questions.) If you are confused by a question, simply ask the examiner to rephrase the question.
Speak in your own words. Don’t try to memorize what you are going to say. Doing so will make your testimony sound “rehearsed” and unconvincing. Instead, prior to the deposition, get by yourself and go over in your mind those matters which you will be questioned.
Answer in complete sentences. Answers like “yeah” and “uh huh” are difficult for the court reporter to record. Feel free to make gestures, but remember they will not be recorded. Give positive, definite answers when at all possible. Avoid saying, “I think,” “I believe,” or “In my opinion.”
Do not speculate or guess. You only know what you have seen or head. Do not speak for other people. Do not be tricked into answering a question to which you do not know the answer. If you do not know or cannot recall something, say so in spite of the examiner’s attempts to make you look stupid for not knowing something. Answer as specific or as vague as your memory allows. Likewise, avoid conclusions. Let the facts as you remember them speak for themselves.
When testifying about conversations, make it clear whether you are paraphrasing or quoting directly.
Do not characterize your own testimony. Saying “and this is the honest truth” is an indicator to lawyers that you are not. Besides, it sounds self serving.
Do not paint your self into a corner. Avoid superlatives like “Never” and “Always.” Unless you are certain, don’t say “That was all that was said.” Instead say, “That’s all I recall.” It may be that after more thought or another question, you will remember something else.
Do not testify as to your “state of mind” unless you are specifically asked about it. For instance, if the question is: “Did you read that document?”, the answer is: “Yes.” Do not respond “Yes, and I believe every word in it.”
Look it up. If information is in a document that is available, ask to see the document unless you are very certain of your answer. If information is in a document which is not available, answer the question only if you can recall the answer. Be careful not to tip off the examiner as to the existence of documents he does not know and has not asked about.
Do not let the examiner put words in your mouth. Do not accept his characterization of time, distances, personalities, or events. Rephrase the question into a sentence of your own, using your own words. Take your time when dealing with these kinds of details. Likewise, do not adopt the examiner’s summary of your prior testimony.
Do not answer a “compound question” unless you are certain that you have all the parts of it in your mind. A compound question would be: “Did you run the red light and were you looking straight ahead?” Your best bet for a compound question is to request that the question to be rephrased.
Take a break. If you need a rest or have a question for your lawyer that you do not want the other side to know about, ask for a break. Also, if you are hit with a flash of insight or recollection while testifying and this has not been previously discussed with your lawyer, hold this to yourself, if possible, until you have had an opportunity to go over it with your lawyer at a break.
If you are caught in an inconsistency, do not collapse. State your present answer to the question. Give your reason for the inconsistency only if you are asked. Let your lawyer worry about fixing the problem.
If you have finished your answer, remain quiet. Do not add to your answer because the examiner looks at your expectantly. If the examiner asks you if that is all you recollect, say yes, if that is the case. Lawyers use uncomfortable moments of silence to see if you will volunteer information.
Do not agree to supply any information or documents requested by the examiner. Let your lawyer worry about that. You can say, “I will do what my lawyer tells me to do.”
If your lawyer objects to the question, listen to the objection very carefully. You may learn how you should answer the question. Generally speaking, you must answer all questions asked in a deposition. If you should not answer a question, your lawyer should make it very clear to you.
Remain calm. Never express anger or argue with the lawyer asking the questions. Your lawyer should speak for you if the deposition is getting out of hand. Always be courteous, even if the examiner appears discourteous. However, do not be a push over. If you are interrupted, let the examiner finish his interruption and then firmly but courteously state that you had not finished your answer to the previous question; then, answer that question.
Do not trust or attempt to become the friend of the examiner. If the examiner is being nice, remind yourself who is paying him/her.
Do not be surprised if the other side gets good information from your testimony. If the examiner is asking questions which call for answers that do not help your case, accept the fact that every lawsuit has two sides.
Avoid jokes. They are not funny on the record. Especially avoid sarcasm. Avoid even the mildest obscenity. Do not cuss. Avoid absolutely any ethnic slurs or references which could be considered derogatory.
If the examiner appears totally confused about your business and its technical aspects, do not attempt to educate him. Just enjoy the moment.
Most witnesses makes some mistake or say something they regret at a deposition. Do not become upset if you do. If you realize you made a mistake during the deposition, correct it. Mistakes discovered after a deposition may be corrected when you sign the errata sheet to the transcript.
Dress to impress. At the time of the deposition, you should remember that this is probably the first opportunity that the opposition has to meet you. You will be judged by your honesty, frankness and possible “jury appeal.” Therefore, you should appear on time, dressed as you would expect to dress if you were actually going to Court to appear before the jury. Remember that making a good impression is your goal.
If the examiner asks if you talked with anyone about the case, know that it is perfectly proper for you to have talked with your lawyer or family members before you testify. Knowing this respond truthfully to this question as you would any other. However, refrain from discussing the subject matter of conversations with your lawyer.
Review the court documentation- the lawsuit, answer and discovery responses. Be sure you understand the nature of your claim.
Some lawyers will attempt to make your position seem ridiculous in order to pressure you into making a concession. Hold the line.

The 10 Biggest Mistakes Experts Make During Depositions

By Steven Babitsky, Esq.

The discovery depositions of expert witnesses are increasingly playing an important role in the litigation process. Under Federal Rule of Civil Procedure 26 (4) A:

“A party may depose any person who has been identified as an expert whose opinions may be presented at trial.”

With this in mind, we turn to the ten biggest mistakes experts make during their depositions.

#1 – Waiving The Reading of Signing Of The Deposition Transcript

At the start of most depositions, counsel will agree on stipulations. Use of the most common stipulation is that the deponent waives the right to read and sign the deposition transcript. The expert who is interested in accuracy should not agree to this waiver lightly. Experts who agree to waive the reading and signing are agreeing to a document’s accuracy without even seeing the document.

Lesson: You have a right to read and sign your deposition. You shouldn’t let counsel waive that right unless you want to.

#2 – Failing To Take Breaks

Experts routinely fail to ask for and take a break when they need to or when they would benefit by a break in the proceedings.

Lesson: Ask for a break or recess any time you want one, need one, or feel that it will help you collect your thoughts so that you can return reinvigorated.

#3 – Conference With Counsel

Experts often fail to obtain an in-depth meeting with counsel who has retained them.

Lesson: Ask for and obtain a meeting with counsel to review the types of questions you will be asked, the pertinent legal standards, your file for work product and privileged information and an update on the current status of the pleadings and litigation.

#4 – Your Curriculum Vitae

Experts often bring a curriculum vitae to the deposition which is not accurate and is not up-to-date.

Lesson: As part of the preparation process, it is crucial for experts to update and fact check the accuracy of their CVs carefully. Failure to do so can result in needless damage to your credibility that proper preparation could have prevented.

#5 – Sanitizing Your File

Experts attempt to hide damaging documents and notes by removing them from their file. This is a serious logical and strategic mistake.

Lesson: Any attempt by the expert witness to “sanitize” his/her file is improper. Such an attempt will frequently make the expert look bad in the eyes of the jury of fact finder. A single act of removal of documents from a file can completely destroy the credibility of an expert witness.

#6 – Opinions

Experts frequently state their opinions without giving adequate thought as to how they will defend them during cross-examination.

Lesson: Experts should prepare for an in-depth series of questions regarding their opinions. They should prepare to discuss:

The facts and assumptions upon which the opinions are based
The methodology employed in deriving the opinion
When the opinion was first formed
The documents used by the expert in forming the opinion
The degree of flexibility in the opinion and
How the proposed opinion compares to answers previously given during discovery

#7 – Billing and Collecting

Experts wait until after the deposition is concluded to bill and attempt to obtain payment for their time and expenses.

Lesson: Most experienced expert witnesses strongly recommend that experts be paid prior to giving a deposition. This is the only way to guarantee collection of your fees. The expert who does not demand payment in advance will run the risk of late payment, no payment, and/or collection problems with counsel.

#8 – Losing Your Temper

Experts are pushed into losing their temper by counsel’s questioning. This is always a serious mistake.

Lesson: Do not allow yourself to be goaded by counsel into losing your temper. If you lose your temper, you will give an emotional response to a question. Such an emotional response will not be carefully considered and will come back to haunt you.

#9 – Volunteering Information

Experts seek to help counsel by volunteering information to help “clarify” the issues.

Lesson: Volunteering information can be one of the biggest mistakes an expert makes at deposition. 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.

#10 – Videotapes Depositions

Experts act in the same manner for their videotaped deposition as they would for one that is recorded by a stenographer.

Lesson: Experts need to look and sound good for their videotape deposition. I recommend the following:

Practice with counsel with a videotape camera
Dress conservatively
Look directly in the camera when testifying
Avoid long pregnant pauses
Handle exhibits so they can be easily seen
Use make-up powder (for men, get close shave)
Avoid eating, chewing gum, drinking, or chewing on pens and pencils
Turn off pagers, cell phones, and beepers

Conclusion

The single most important piece of advice for the expert witness is to tell the truth, simply and directly. This cannot be overemphasized. As an expert witness, you have a legal, moral, and ethical obligation to tell the truth. You are testifying under oath. Experts who tell less than the truth run the risk of criminal prosecution for perjury, civil suits for negligence, and revocation or suspension of their professional licenses. Experts who do not tell the truth are discovered and discredited eventually.

Experts who are aware of the above mistakes and take the appropriate action to avoid them are well positioned to succeed during depositions.

About The Author

Steve Babitsky, Esq. is the President of SEAK, Inc. and is the co-author of the new text; Depositions: The Comprehensive Guide for Expert Witnesses.

For further information on SEAK, Inc., visit www.seak.com or call (508) 548-7023.

Mediation

A dispute resolution method designed to help warring parties resolve their own dispute without going to court. In mediation, a neutral third party (the mediator) meets with the opposing sides to help them find a mutually satisfactory solution.

Unlike a judge in her courtroom or an arbitrator conducting a binding arbitration, the mediator has no power to impose a solution.

No formal rules of evidence or procedure control mediation; the mediator and the parties usually agree on their own informal ways to proceed.