Page 26 - Expert Witness

instances, the attorney relies on the practitioner to identify the specific records needed to complete the
analysis necessary to form an opinion. In basic terms, this often means that the practitioner’s communi-
cation with the attorney will be delayed or limited. Furthermore, it is in the practitioner’s best interest to
understand what time commitments are necessary to meet the various deadlines in each case. Otherwise,
practitioners may find themselves having to complete a large amount of work at the last minute and pos-
sibly not having sufficient relevant data upon which to base an opinion.

Interrogatories

Interrogatories are often the first discovery device used. They are written questions put forward by one
party and served on the opposing party, who must answer the questions in writing, under oath. Interroga-
tories serve as an excellent tool to obtain information when little, if anything, is known about the oppos-
ing party. The practitioner’s special knowledge of business or a particular industry can help in construct-
ing questions to develop a thorough understanding of an organization’s systems, documentation and
structure. For example, the nature and extent of the opposing party’s financial reporting and manage-
ment information systems are possible areas of inquiry. The names and title of officer or principals in
the business also can be obtained for further discovery of their files.

Request for Production of Documents

A request for production of documents requires one party to provide the opposing party with documents
in its possession that are relevant to the issues in the case. These requests usually follow the interrogato-
ries. The requests must be very specific, or the opposing party may not produce the documents, even
when the information sought is apparent. Therefore, each party needs to request exact titles of reports,
culled from the information already obtained through interrogatories or depositions.

Depositions fn 13

A deposition is the oral testimony of a witness questioned under oath by an attorney. The questions and
answers are transcribed by a court reporter who records the testimony in a written document that can be
used in court. In a litigation engagement, the practitioner may give the deposition or assist the attorney
in taking the deposition.

The opposition’s attorney usually takes the deposition of the practitioner retained as an expert witness in
a civil case (depositions generally are not taken in criminal matters). The attorney does this to under-
stand the practitioner’s background, reasoning, and opinions in the case. Often, the deposition affords
the only opportunity prior to the trial for the opposing attorney to question the expert witness in depth.
The opposing attorney uses the deposition to evaluate the practitioner’s strengths and weaknesses as a
trial witness and to develop a comprehensive understanding of this expert’s opinions, studies, and anal-
yses. However, some experienced attorneys prefer not to question an expert in depth at a deposition be-
cause it allows the expert to thoroughly test theories and approaches and then correct them as needed for
the trial. Questions at the deposition usually cover the work performed by the practitioner, including re-
jected analyses and unused information. In addition, the deposition can be used to narrow the scope of
the practitioner’s testimony at the trial because anything said at the deposition can be used to impeach

fn 13 See appendix C, "Deposition and Trial Testimony Tips."

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