Don’t get ‘boxed in’ during a deposition

BVWireIssue #163-3
April 20, 2016

Attorneys will try to discover how to exclude all or part of a valuation expert’s testimony by “boxing the expert in” during a deposition. In fact, that’s the main objective of the deposition, say attorneys who spoke at a recent workshop.

We recently attended a presentation, “Deposition of the Expert Witness,” by the Multnomah Bar Association in Portland, Ore., which offered some unusual views from two experienced litigators on how to work with and against experts. The presenters, Paul Conable (Tonkon Torp LLP) and Chris Kayser (Larkins Vacura), spoke primarily to an audience of attorneys, but their tips can help experts land engagements and get ready to do battle.

Be on guard: Attorneys use depositions to find out the worst things the expert is going to say, to limit the scope of what the expert is going to testify to, and to uncover what the expert did or did not rely on. In other words, the deposition serves as a record with which the attorney will try to exclude parts or all of the expert testimony at trial. Therefore, you should be prepared to hear a catchall question along the lines of: “Other than the opinions you have already expressed today, are there opinions you intend to give at trial?” Your reply limits what you as an expert can say at trial and helps the attorney protect against surprises in the courtroom.

There will be more coverage of this workshop in the June issue of Business Valuation Update.

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