Are you still following ‘old school’ deposition testimony?

BVWireIssue #83-2
August 12, 2009

During a deposition, financial experts should try to answer all questions from opposing counsel with a brief “yes” or “no”—or at least, they should answer only the question asked, because otherwise, they could set themselves up for damaging cross-examination at trial. Right?

Not anymore.  The “old school” primed financial experts to keep the trial always in mind as they prepared and delivered their deposition testimony. But over the past several years, as discovery and other litigation costs have skyrocketed, the “new school” deposition strategy is to facilitate mediation and cost-effective settlements, according to attorney Miles Mason Sr. (Crone & Mason, PLC, Memphis, TN).  “The paradigm has shifted,” he told the BVWire™.  More and more, depositions are becoming “beauty contests” for the financial experts, a chance to demonstrate the “quality and elegance” of their testimony.  “If my expert outshines the other, then it will intimidate the other expert—and, more importantly, it will intimidate the other side,” Mason said. Mediation often follows the deposition, and “when I settle cases, I get higher client satisfaction, which is one of my goals.”

Client satisfaction is always paramount—and attorneys are still one of the best referral sources for business appraisal experts. So before your next deposition, be sure to discuss strategy thoroughly with the attorney, and decide whether the “new school” might work to your advantage in the case. Then, when asked whether you included certain data in your discounted cash flow analysis, for example, or if you considered certain factors in assessing guideline company comparables, take the opportunity to describe your approach fully and thoughtfully, using your testimony as a platform to educate (and impress) the opposing attorney. Don’t go beyond the “four corners” of your valuation report; and do avoid “diarrhea of the mouth.”  “Listen to the question carefully,” Mason advised, “and answer it as asked—not as the question should have been asked.”  Stick to your area of expertise, and use the deposition as an opportunity to show your sincerity, confidence, competence, and quality. Who knows? One of the best compliments (and business development opportunities) is when opposing counsel calls you about the next valuation case.
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