Page 27 - Expert Witness

the practitioner’s credibility at the trial. Therefore, the practitioner’s testimony in the deposition needs to
be consistent with the testimony at the trial.

Once the practitioner is named as an expert witness, the practitioner needs to understand that he or she
must be independent as a fact finder for the court and is not an advocate for his or her party as he or she
may have been if he or she were initially retained as a consultant. Conversely, the practitioner also
should be aware that the attorney works for the attorney’s client, and the practitioner may wish to en-
gage or consult with his or her own counsel during a challenge of his or her expert opinion or a Daubert
challenge.

During a deposition, the practitioner must answer honestly because he or she is required to do so not on-
ly for ethical standards but also because he or she is under oath and the penalty of perjury. Therefore, it
is critical that weaknesses the practitioner uncovers during discovery should be communicated to legal
counsel as soon as possible. In addition, the practitioner should answer questions without volunteering
additional information. The practitioner should read the deposition transcript carefully before signing
and again before testifying at the trial because it often will serve as a script for the cross-examination by
opposing counsel.

Depositions of experts in federal cases are covered by the Federal Rules of Evidence and the Federal
Rules of Civil Procedure, as discussed in various areas of this practice aid, and are not an absolute right
of the opposing party. Usually, agreement by both sides or the direction of the court is required to obtain
an expert’s deposition.

Although the only person who can ask questions at a deposition is the attorney, a practitioner can pro-
vide highly valuable assistance to the attorney during the examination of business people, particularly
those in the financial or accounting areas. Frequently, the attorney asks the practitioner to assist at a
deposition in examining the opposition’s expert or accounting personnel. The practitioner knows the
language of business, including technical terminology, and usually can detect a witness’s uninformative
answer or a sign of weakness that the attorney might miss. The practitioner can suggest additional ques-
tions to the attorney by passing notes during the deposition or at meetings during breaks.

In this way, the practitioner can help identify an inconsistency or expose a flaw in testimony. To the ex-
tent that the practitioner can be present to assist the attorney in taking a deposition, he or she should do
so. Even if the practitioner does not identify weaknesses, he or she can assist in assessing the strength of
an opposing expert’s position and pass notes to get further clarification or rationale on technical points,
which may help avoid faulty future assumptions.

Even an attorney who does not request the practitioner’s presence at the deposition often will ask the
practitioner to draft questions for the deposition. These questions have two aims: (a) to clarify the op-
posing expert’s analysis and (b) to point out problems, inconsistencies, and errors in the analysis. This is
also one of the best times during the discovery process to gain an understanding of the opposing party’s
position and the underlying basis thereof.

Again, attorneys differ in approach. Some believe it is unwise to make the witness aware of analytical
flaws at the deposition. They prefer to withhold this information for use at the trial. Others believe that
the deposition can be used to point out the weaknesses in their opponent’s case, thus encouraging set-
tlement or, at a minimum, getting the expert to correct a presentation for use at the trial.

© 2020 Association of International Certified Professional Accountants 25