Part 6 of our series on How to Be an Effective Expert Witness in Court.

Your deposition is the first opportunity an opposing attorney has to meet you in person and to examine you in a question-and-answer format. The primary purpose of a deposition is to give the attorney an opportunity to ask you all the questions he or she wants, subject to applicable procedural rules; and for you to respond accordingly, subject to any applicable limitations that will be discussed in detail below. You should not view a deposition as an opportunity for you to tell everything you want to tell about a case. That is what direct testimony at trial is all about. A deposition is an opportunity for the opposing attorney to ask questions, and if the attorney doesn't ask the right questions or enough questions you have no obligation to help him or her. Both lay and expert witnesses have a natural tendency to want to tell everything they know at a deposition and to volunteer information that isn't actually inquired about during the course of the questioning. This is a tendency that must be overcome in order to be an effective witness. You should listen to the question, provide only as much testimony as is necessary to respond truthfully to the question, and not volunteer information that is not necessary in answering the question.

A court reporter will be present at your deposition and a verbatim transcript of your conversation will be made. Understand that the court reporter is obligated to report anything that is said out loud. You as a witness do not have the option of going off the record or striking some portion of your testimony. Whatever you say will be permanently memorialized and made part of the official court record. When you testify, you will be under oath. This means that while a deposition normally takes place in an attorney's conference room, everything you say at a deposition has the same legal significance it would have if you were testifying under oath in court in front of a judge and jury. Therefore, while the setting is informal, it is just as important as if you were in court, and you should guide yourself accordingly.

While the primary purpose of a deposition is to ask you questions, there is a significant secondary purpose. A deposition is an opportunity for the attorney to observe you in person and assess your probable effectiveness as a witness. Thus, your physical appearance will be noted, your overall demeanor will be assessed, and your ability to understand questions and respond effectively will be considered. The ease with which the attorney can potentially manipulate or bully you will also be determined. You want to dress appropriately for the occasion, and conduct yourself in an appropriately professional manner. Do your best to repress any nervousness. Avoid any pre-examination banter with opposing counsel. A common technique used by examining attorneys is to engage in friendly chitchat prior to commencing the deposition in order to lull you into a false sense of security. Don't be fooled by a friendly attorney. Regardless of how polite and professional he or she may be, they are your opposition throughout the process and you should never lose sight of that fact.

Typically, the attorney will have a copy of your CV, a copy of your report, and a copy of any of the file materials that are subject to discovery prior to the deposition. They will use these materials as the basis for their examination, but they will not be limited to them in terms of the scope of their questioning. Until the recent amendments to the Federal Rules of Civil Procedure it was typical for the attorney to request copies of all written materials that were in your file. In addition, any other "things" that were in the file would also be subject to discovery. This means they could demand a clone of any computer hard drive images that you prepared in the course of your work on the case, as well as any test results and software reports in native format generated as a result of your analysis. Their own expert could have examined them and provided the attorney with detailed questions to ask concerning your examination methodologies and test results. As an expert, you should always assume that the opposing attorney has an expert of his own that he has worked with to develop lines of inquiry that will uncover potentially damaging information to your case, and that he will be technically knowledgeable about all aspects of the work you have done in the case. Even if the attorney appears to be fumbling about and seems not to have the appropriate technical background, you should assume this is a ruse until you can be certain otherwise. Detective Colombo is not the only person who uses the bumbling fool technique to acquire damaging information from an unsuspecting witness.