BASIC WITNESS PREPARATION

BBA/CLE

September 13, 2000

M. Clay Alspaugh
Hogan, Smith & Alspaugh, P.C.
2323 Second Avenue North
Birmingham, AL 35203
(205) 324-5635

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I. INTRODUCTION

It might be said that witness preparation, be it deposition or trial testimony, is part

art, part science, but mostly a whole lot of luck in that all witnesses have basic

personality differences, have varying agendas, and almost always the witness you are

preparing has zero experience testifying. I will try to address the method I have used

over the years to assist the witness as to what to expect, how to respond, and then

hope and pray the witness’s spoken words don’t sink the ship.

II. DEPOSITION TESTIMONY

The deposition testimony of a party, almost without exception, follows

interrogatories having been answered. In anticipation of the oral testimony, a good

opportunity to start witness preparation is when those interrogatories are answered.

Since those interrogatory answers will be a skeleton that the examiner will use for

further discovery, it is imperative that those answers be evaluated completely as to their

thoroughness and particularly as to their accuracy. Routinely, we provide the questions

and answers to interrogatories to parties prior to the pre-deposition conference. Listed

below is a suggested outline of subjects to discuss with the deponent regardless of that

deponent’s characteristics, whether they are a party, or a witness.

A. DISCUSS PURPOSE OF DEPOSITION

My general preparation includes words to the effect that a deposition is a sworn

or affirmed-to statement taken before a court reporter outside of court. Ordinarily, I

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show the deponent a copy of a deposition indicating that questions and answers come

back in book form. The deponent, if a party, should be advised that the deposition can

be used as primary testimony of that deponent, in that the opposing party can read the

questions and answers as admissible to the jury; can use the questions and answers in

preliminary motions such as summary judgment; and most assuredly can use the

deposition for cross-examination purposes. Since most parties do not know what

cross-examination is ordinarily an example is appropriate. The one I commonly use

would be something such as follows:

Cross-examiner: "Ms. so-in-so, you told these

ladies and gentlemen of the jury
that you saw that light turn green
when you were five car lengths
from entering the intersection.
Do you remember when I took
your deposition at your lawyer’s
office on September 13, 2000,
and do you remember that your
testimony on that occasion was,
in fact, you saw the light turn
green one car length before
entering the intersection."

Obviously, the purpose here is to focus the party on the need for consistency

and to tell the truth.

B. TELL THE TRUTH - CREDITABLY IS EVERYTHING

Early and often during your preparation should you re-emphasize the need for

complete candor. In discussing this proposition with the client, I advise that if the truth

hurts, so be it. Further I advise that hopefully we can explain away the truth if, in fact, it

does hurt, but it is impossible to explain away a lie.

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 C. YOU CAN GIVE "BEST JUDGMENT" OR "OPINION"--
i.e., NO NEED FOR CERTAINTY

Parties, as well as witnesses, feel that if they can’t testify absolutely to an

occurrence that they should not "speculate." While it is true there should be no

"speculation" in preparing a witness and/or a party, advise that in response to a

question if the deponent has a judgment they can give that judgment. That is they must

have a set of facts known to them upon which they can reasonably arrive at an opinion

or judgment. Since many witnesses and parties might have seen t.v. and heard the

comment "beyond a reasonable doubt" they sometimes feel a reluctance to testify

about any aspect of the case of which they are not certain. As a consequence, it is

imperative to go over the issue of "best judgment" and "opinion" with the client.

Traditionally, witnesses and parties are bad judges of distance and time. I will ordinarily

discuss this with them also and advise the witness that should that witness not be good

at making distance judgments and/or time judgments, that they might make their

response with the caveat that they are not good judges of time nor good judges of

distance and that they should not be held with certainty as to their testimony regarding

that.

D. DON’T GUESS

There is a distinction between judgment, opinion, and a guess. I generally use

the example that if you do not know the answer to a question today, you did not know

the answer to a question yesterday, and you will not know the answer to the question

tomorrow, then the appropriate answer is "I don’t know." To respond to that question is

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a guess. Do not do so. However, also I suggest that if there is some information, be it

from another individual or be it some paper that might refresh the memory of the

deponent after the deposition, then the response should be "I do not recall" or "I don’t

remember." If you respond that you "don’t know" the answer to the question today, it’s

hard to come back at trial and know something you didn’t know months earlier. Of

course, your memory can be refreshed and if there might be a set of facts that would be

a basis of the recollection being refreshed, the response should be "I don’t remember"

or "I don’t recall." ** Caveat: Make certain that the deponent doesn’t get hung up on the

"I don’t remember" or "I don’t recall" response routinely in that it makes the witness

appear to be evasive when, in fact, the response may be legitimate.

E. DON’T ANSWER "Uh-huh" or "Uh-Uh"

I advise the deponent that every question and every answer will be taken down

by a court reporter. We all being human, the reporter sometimes might fail to

distinguish an "uh-huh" (yes) from an "uh-uh" (no). Since each has the opposite

meaning, the response should be "Yes, sir," "No, sir," or "Yes, ma’am," or "No, ma’am,"

when appropriate. Remember opposing counsel evaluates not only what you say, but

also how you say it. Your witness’s demeanor is critical.

F. DON’T RESPOND WITH A NOD OF THE HEAD

I generally state that since the court reporter can’t take down a "nod of the

head," the response should be verbal. I further advise that should the deponent fall into

that habit, I will correct them during the deposition.

G. LET THE LAWYER FINISH THE QUESTION BEFORE RESPONDING

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 In regard to this area, I generally advise that ordinarily the deposition testimony

comes out "question, answer, question, answer," not "question, part of answer, rest of

question." I further say that good lawyers sometimes have the method of changing

horses in mid stream. Therefore, it is important for the deponent to listen to the entire

question then respond appropriately. (Additionally, this is a good way to curry favor with

the court reporter.) Don’t try to guess, or anticipate the question.

H. IF YOU DON’T UNDERSTAND THE QUESTION ASK THE

LAWYER TO REPEAT IT

This is self-explanatory. Preliminary to going over this with the client, I advise

that it is not generally the purpose of opposing counsel to try to trip up, confuse, or trick

the deponent with his questioning. Further, I advise that should I make an objection

that "I don’t understand the question" even though opposing counsel might have the

deponent acknowledge that "they understood the question," nevertheless have the

opposing lawyer repeat the question. Again, however, it should be emphasized with the

deponent that if the question is straightforward, continued request of opposing counsel

to "repeat the question" can give the impression of evasiveness.

I. "THE RULE"

When discussing "the rule" with the client, I generally advise that the purpose of

the deposition is discovery, that many of the questions that will be asked are not

admissible or would not be admissible at trial. Nevertheless, opposing counsel has a

right to make reasonable inquiry into any area that might lead to admissible evidence. I

further advise that it is not my responsibility at the deposition to state all objections,

other than as to the form of the question, in that I would still preserve, for the most part,

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objections at trial. Caveat: Remember now under our discovery rules the party against

whom a deposition is to be offered cannot idly stand by and necessarily always hope to

raise an objection to testimony at trial that could otherwise have been cured at the

deposition. See McKelvy v. Darnell, 587 So. 2d, 980 (Ala. 1991).

J. DON’T VOLUNTEER INFORMATION

Again, this caveat really needs no explanation. One of the examples I routinely

use is that if the deposing lawyer asks the deponent the time, there is no need to tell

that lawyer how to build a watch. Further, most lawyers that have had any experience

in taking depositions sense deponents that wish to volunteer information. I, on

occasion, have sensed that these deponents have a need to go beyond what has

simply been asked. I will simply sit there mute and nod my head at the deponent

whereupon the deponent feels obligated to volunteer information and continues to

respond. Many times the best answers you ever get in the deposition is that

information that is volunteered. Therefore, it is tremendously important to impress upon

the deponent the need to be directly responsive to the question and not go beyond the

bounds of the question.

EXCEPTION: I further advise that there is an exception to volunteering

information in that when the deposing attorney inquires of damages, injuries, and effect

on the individual of the actions of his client, this information should be gone into with

some detail. Heap it on. Later, you can always cut back--but it is hard to "add on." In

preparation of your witness, you must go again over not only the interrogatory answers

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and information provided to you by your client, but also go into some depth as to what

you would expect that individual to testify regarding the damages that the plaintiff has

suffered, or that the plaintiff’s spouse or child might have suffered. Invariably, if trial

testimony is adduced that goes beyond the response in deposition, the opposing lawyer

being the aggressive sort that they are, will say, "You didn’t tell us about that when I

took your deposition, did you?" When interrogatories are answered it’s a good time to

again go into detail with your client to give them some time to think about the damages

and injuries and how it might be expressed in deposition so as to not preclude that

testimony, or make it new testimony, at trial.

K. DON’T ARGUE WITH THE ATTORNEY

I generally advise my client that while it would not be the intent of most attorneys

to make the deponent mad or to raise their ire or anger, nevertheless that attorney will

be trying to ascertain how he might elicit a response be it anger, sadness, or whatever,

at trial or otherwise how to find out how I might evoke that emotion at trial in direct

examination of my party. Anger is one of the emotions that, if directed at the opposing

party inappropriately, would be positive or a plus for that party. Therefore, I advise, that

regardless of the questions asked by the opposing attorney, do not get mad and do not

argue with the lawyer. Argument is for me. I further advise that should I get into a

harangue with a lawyer, let me handle that aspect of the matter.

L. "Do I Have to Answer That Question?"

I generally tell my clients that, yes, you have to answer any question put to you

unless I specifically advise you not to answer the question. Once I give that advice,

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regardless of whether you want to answer the question, do not do so. Each of us have

had witnesses say, "I want to answer that question." You, yourself, will have to

determine as the circumstances arise whether it would be appropriate to allow such a

response and an answer to a question but, preliminarily, the witness should be advised

that the rules of procedure allow almost all areas of inquiry with certain exceptions and

that you as the attorney for the party and/or deponent will make the decision as to what

needs to be answered or not answered. In that regard, a thorough and frank

conversation with the deponent and/or witness as to whether there might be any

skeletons in the closet of which you are unaware should be addressed. Typically, I

advise the clients that questions will be asked concerning prior convictions be it

speeding tickets, misdemeanors, or felonies, prior marriages, prior injuries or accidents,

and in all instances candor and honesty should be hallmark and the witness’s

watchword. Subjects may come up that inquires of embarrassing testimony. Discuss

pros and cons of offering this testimony. Remember if you waive it at deposition, it may

be hard to offer it at trial. However use extreme caution in advising a witness not to

answer. (See Rule 37 Alabama Rules of Civil Procedure and Federal Rules of Civil

Procedure).

M. MULTI-PARTY DEPOSITION ATTENDANCE: "Am I Right

About That" or "You Are Wrong About That"

Many times multi-parties attend the deposition. It is only human nature that, in a

husband/wife circumstance, the husband or wife asks the opposite member to refresh

his/her memory or to inquire as to whether his/her response is correct. Conversely, one

of the parties might shake their head or blurt out that the response of the spouse is

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incorrect. As a general rule, the parties should be advised that each deposition is that

individual’s, the fact that the memory of one might be slightly different than the memory

of another does not make that person untruthful. Ordinarily, the example I use is that of

the blind men describing an elephant. All described an elephant, although the

individual descriptions were totally different.

The exceptions to this, of course, are where you feel, particularly with opposing

counsel, the opposite party’s recollection will speed the deposition along, is not

objectionable, or in other words simply gets to the truth of what the matter is. This is a

"play it by ear matter" but, many times does cause confusion with the court reporter

and, on occasion one deponent or another might not be under oath at the time the

inserted response is made.

Many times after the primary deposition, the spouse, in their deposition, will be

asked - “Is there anything your wife said with which you disagree?” Object but allow the

answer, with the caveat that “I need to look over the deposition testimony”.

N. "I PROBABLY WON’T ASK ANY QUESTIONS"

I advise the clients that the purpose of the deposition is not for me to prove any

aspect of the matter. Routinely, particularly with a party, I will not ask any questions. I

do advise, however, that should I ask questions it simply will be to clear up a matter that

I think might be confusing, or will provide a complete record consistent with our claim or

cause of action. I advise that the deponent should not feel that they have made a

mistake by my asking questions. Rather assure them that I simply am clearing up a

matter that I think is important.

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 O. "WHAT DO YOU HAVE IN THAT PURSE?"

Each of us have had occasion to be in a deposition and a question asked to

which the deponent or party says, "Well, let me look at my notes about that," or some

other response of that nature. Please inquire of your deponents if there are any notes,

writings, or any other extraneous information that they need to refer to or intend to refer

to in the deposition. Many times you will find that there is some note, some letter, or

some writing, that they have that they wish to refer to that you might not otherwise know

about. While notes and writings to refresh memory are perfectly acceptable and can be

used, nevertheless don’t be surprised by a deponent or witness pulling something from

their pocket, wallet, or purse and referring to it in deposition. Be aware as to whether

they need any such item, and what it is to, make a determination as to whether they

would be able to use that item. Remember that such items, if not prepared particularly

for the attorney on behalf of the plaintiff, might be discoverable and/or admissible.

P. DRAWINGS/DIAGRAMS

Depending on the nature of the case, drawings or diagrams are requested from

the deponent. The deponent should be advised that opposite counsel may request a

writing or a drawing of an intersection, a device, or anything material to the case. In

that regard, preparation of the witness as to the request for a drawing or diagram is

absolutely necessary. Even if a diagram is not necessary, one should go over the

automobile accident report, EMT run report, or other report of an investigating agency

that the opponent has to properly prepare the deponent for the questions that come.

Q. WHAT’S IN THE MEDICAL RECORDS

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 Be familiar with the histories in any medical records, not only for the injury

involved in the instance, but also prior injuries or prior hospitalizations as to past

medical problems, complaints, etc. A wealth of cross-examination material is routinely

found in old medical records and/or medical records generated relative to the injury

made the basis of the suit. In that regard, the medical records should also be reviewed

with the client in preparation of interrogatory answers. Don’t look for the first time at

medical records you may have obtained at trial by a subpoena duces tecum.

Many times, the deponent, truthfully, will not respond to a prior medical problem

that might exist in the medical records. Therefore, you should be aware that if the client

has not spoken up about a prior medical problem that would have been responsive to

any particular inquiry by opposing counsel, it would be well to refresh that client’s

memory from the medical record in that that will defuse, at least somewhat, cross-

examination at trial on the same issue. It looks much better to refresh that memory at

deposition than try to rehabilitate the individual at trial concerning the matter.

R. SIDE-BAR: “CAN I TALK TO MY ATTORNEY ABOUT THAT?”

“DO I HAVE TO ANSWER THAT QUESTION?”

Generally, in this area I advise that only on matters that we might not have talked

about in deposition preparation should the deponent ask for a discussion with me

concerning the matter. Since not all matters that might come up in a deposition can

possibly be covered at deposition preparation time, it might be necessary for the

deponent to, in fact, inquire of you regarding their response or necessary response to a

question. Again, in advising the client regarding the matter, make sure any such

comment is used sparingly in that it is my feeling that opposing counsel not only

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evaluate the witness for what they say but the way they say it, and how they will appear

to a jury should the case be tried.

S. "OH, I JUST REMEMBERED. . ."

I advise that should the deponent throughout the deposition remember a

response or a correction to a previous response, there is nothing wrong with interrupting

and telling the opponent how the previous response might not be complete or might not

be totally accurate or how new information has come to mind that more firmly

establishes the truth. That is, this is another exception to the "volunteering information"

rule in that what we are looking for is a completeness in truth here and should it occur

to the deponent that something needs to be clarified then by all means that deponent

should do so.

T. PRIOR STATEMENTS

Prior to the deposition, inquiry of opposing counsel should be made as to

whether that deponent is in possession of any statements taken of the deponent. If it is

a witness, the deponent himself should ask for a copy of the statement and the

statement should be gone over prior to the deposition with the witness and/or party.

(See Rule 26 Alabama Rules of Civil Procedure).

U. DISCUSS OPPOSING COUNSEL, HIS DEMEANOR, AND WHAT THE

WITNESS CAN EXPECT IN OPPOSING COUNSEL’S QUESTIONING

If you have no experience with opposing counsel, his habits and/or nuisances,

inquiry might be made of others that have seen others deposed by that individual.

Many attorneys follow a printed checklist and script covering every possible aspect of

the case or what might be an aspect of the case. Others cut to the chase quickly. To

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that extent, it is important to go over the complaint with the plaintiff and go over in detail

what the allegations of fault are. There is one particularly fine and experienced defense

lawyer in the state whose first questions, almost invariably, to a party plaintiff is "What

do you say my client did wrong?" Such an inquiry is unnerving if the party is not ready

to respond to that. By the same token, though, the client does not recognize all the

intricacies of the law, it does give the client the opportunity to say generally what the

allegation is and further that that’s what I went to a lawyer for in order to tell me what

my rights are.

V. GO OVER THE LAW

Contributory negligence and assumption of risk are particularly important

theories to explain. Also “discovery date” is imperative if statute of limitations are

involved.

W. TELL THE TRUTH - CREDITABILITY IS EVERYTHING

III. TRIAL TESTIMONY

A. GENERAL PREPARATION

The same basic rules apply to preparation for trial as apply to preparation for

deposition. One issue that is routinely raised is whether or not the testimony should be

"rehearsed" with the individual. I do not “rehearse testimony” in that I feel too much

rehearsal many times makes the witness appear to be coached. However, the subject

matter of the examination should be dealt with. Preliminarily, any deposition of the

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witness should have been provided to the witness, any statement that might surface in

cross-examination should be discussed with the witness, any interrogatory or other

pleading should be discussed with a witness, any interrogatory or other pleading should

be discussed with the witness and any medical record or other document that might be

used for cross-examination should also be discussed in some detail. Again if there is

evidence, though material, that the party does not want to offer because to discuss

such before the Court and jury might be embarrassing should be evaluated.

Remember - the case is the clients, but your duty is to guide them with your experience.

While the witness, if a party, will have been led at deposition, the general rule of

no leading questions on direct should be discussed in detail with the witness prior to

trial. While certain leading questions are acceptable, nevertheless, to suggest the

answer to certain questions, in my judgment, effects the credibility of the witness.

Particularly, as relates to an injury, if the witness does not remember an injury, or the

extent of an injury, then for the suggestion to be made by the lawyer many times can

effect the weight of that testimony with a jury.

RULE 611 Alabama Rules of Evidence: Mode and Order of Interrogation and

Presentation defines the parameters of examination. Reference should be made to

that Rule, and Gamble’s Rules of Evidence concerning this matter. Basically, I advise a

witness that I have very few tools to protect that witness once that witness is on the

stand. For this reason, many times at deposition I will allow opposing counsel to "run

at" the witness so that hopefully the best shot is taken by opposing counsel at

deposition. This also prepares the deponent for trial cross examination.

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 Remember that though leading questions are disfavored, and use thereof lies

within the broad discretion of the court. Nevertheless on redirect these questions seem

to be more liberally allowed than on direct examination.

Preparation should also include why certain information the witness might want

in evidence will not be discussed. Go over cost/benefit, materiality, opening the door

issues.

B. PREPARATION DEALING WITH PRIOR DEPOSITION

TESTIMONY OR STATEMENTS

Invariably some point will be made in a deposition that needs substantial

clarification prior to trial. Rather than trying to cure all problems with deposition

testimony at the deposition in "cross-examination," many times it is better to "plug the

dike" in preparation for trial. Should there be deposition testimony, adverse or

incomplete, or that needs explaining, prior to trial, this portion of the deposition should

be gone over in detail with the witness, again inquiring as to what the truth of the matter

is and what was really meant by the witness in response to the inquiry of opposing

counsel. Many times, testimony in deposition is simply wrong. It is my feeling that

almost always should the “wrong” testimony be material, or even appear to be material,

it is best to defuse that testimony by simply admitting straight up that that testimony was

“wrong”, incomplete, or otherwise not responsive or not a true statement of the facts as

they exist at the time of trial. Juries seem to forgive honest mistakes or errors but will

not forgive what they feel to be an intentional misrepresentation or an attempt to shade

the truth or be evasive.

IV. PARTICULAR TYPE WITNESSES

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 Witness preparation must be tailored to meet many different types. In evaluation

of what profile your witness comes within is as important in the preparation of the

witness as the facts that that witness may respond to. As a consequence, control of

that witness’s emotions by the witness themselves is absolutely essential to present a

good impression to the jury.

A. THE KNOW-IT-ALL / THAT’S MY STORY AND I’M STICKING TO IT

Everyone has met this type witness/party. While it may be easier to control what

the party says by expressing in no uncertain terms that opposing counsel, the court,

and the jury do not want to know everything that individual knows. Nevertheless,

control of that party sometimes is difficult. It is more difficult to control an eye witnesses

recollection to a particular set of facts in that what that witness believes he saw is what

he saw regardless of what other evidence might indicate.

Many times investigating officers, experts, eye witnesses and clients with a little

bit of knowledge want to impress not only opposing counsel but also the jury with that

knowledge. Many times these know-it-all witnesses simply should not be called unless

what they have to offer is the essence of the claim or is not otherwise available from a

"no nothing" witness.

B. THE “KNOW-NOTHING” WITNESS

Many witnesses have only one or two facts that are material to any issue in the

case. As a consequence, do not try to suggest to the witness facts that others might

know that one would have expected this witness to know also. If that witness only

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knows two facts, ask those two questions and let the witness go. If that witness is led,

on direct, many times as a consequence of his "knowing nothing" his credibility as to

what he does know becomes suspect.

C. THE TIMID OR "I’M SCARED AS HELL" WITNESS

Not only are non-expert witnesses generally "scared as hell" many simply are not

able to articulate in front of a jury, or opposing counsel, their true feelings and emotions.

In discussion with your client and/or witness prior to either deposition or trial, this trait

should be identified. Cross-examination is one method to prepare this witness for what

faces him either at deposition or cross-examination. Only on occasion will you ever

have a non-expert witness that’s testified more than one time in the trial. As a

consequence, it is necessary to put that deponent at ease as to the method of

interrogation, the subject matter of interrogation and that the whole purpose is to seek

the truth. Further, these witnesses can sometimes be the most dangerous witness not

for what they say but how they say it in that if the cross-examination appears to be

bullish, arrogant, condescending, etc., the jury undoubtedly will sympathize with such a

witness since no juror would want to be on the stand and grilled as some witnesses are.

With this type of witness, get them on and get them off.

D. THE MOTOR-MOUTH / THIS IS MY DAY IN COURT AND BY

GOLLY YOU ARE GOING TO HEAR MY SIDE OF THE STORY

Preparation of this witness is the most difficult in that most, if not all, times you

have to be firm, and almost insulting. The subject matter of the testimony should be

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gone into in detail with this individual and, while I don’t routinely "practice" testimony,

nevertheless questions and answers and the response of this witness must be gone

into in detail. Many times it’s necessary in deposition to simply object to the

volunteered information and advise your client and/or party to "simply respond to the

questions," interrupt and advise that the question has been answered, next question,

etc. Unfortunately, in trial your adversary will make the objection and after a number of

these objections are made and sustained the jury will lose favor with your witness more

times than not. It must be impressed upon the witness in that the whole purpose is to

tell the truth and to impress the jury with the truth as you tell it.

E. THE MINOR

The most important portion of bringing testimony from a minor, and especially a

young child, is to make that child feel at home with you and comfortable with the

questions that are asked. The court generally gives great leeway in leading questions

of a child. In preparation of that testimony, non-leading questions should be the initial

method of preparation to see how that witness expresses the response. By the same

token, though narrative responses are not favored, nevertheless most courts allow

narrative responses by a minor in the event they are responsive to the question. Make

the child feel at home, make him comfortable with you in preparation for his testimony.

Spend enough time with that child so that you will get a candid response and that he

will feel comfortable in responding to you.

While it has been said that the power of suggestion for a child is important, it is

my belief that juries see through areas where the response has been suggested by

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opposing counsel or by other adults. Inquiries should be made as to how much

discussion has been had between the adult parents and the minor as to any aspect of

that testimony. If it appears the minor’s testimony is based on comments that they

have heard from the parent, guardian, etc. then his creditability, as well as the parents’

creditability is substantially compromised.

F. THE EXPERT

In preparation of the expert for deposition testimony, the entire file, including

every piece of paper should be gone through with that expert in that with a certainty

opposing counsel will go through every scrap of paper in that expert’s file. Should there

be information in that file that needs explanation, that information should be reviewed

with the expert in detail. Should there be portions of the testimony of witnesses that he

might have relied on in developing his opinion then anything adverse in that testimony

and/or statement should be gone over with the witness in order to explain any

differences or discrepancies between what the witness might have said and what his

ultimate opinion is. It is my practice, if this is a witness that I am using for the first time

or have no prior knowledge of that I allow the defense lawyer as much leeway as

possible in examination. I want that defense lawyer to run at the expert to steel the

expert against cross-examination. Many times at deposition your opponent wants to

know what the expert has to say, what his opinions are, the information he has used

upon which he has formed an opinion, and what he is going to say in court rather than

doing a thorough and sifting cross-examination. Others want to kill the expert at the

time of deposition. In my judgment, the most effective discovery of an expert,

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particularly if there is some history that the opposing lawyer has on the witness (the

book) is to simply elicit what he has done, how he did it, why he did it, what

conversations he might have had and with whom concerning his opinion and tie him

down to each and every opinion that he has.

If less than the entire discovery has been provided the expert you need to

discuss why portions of the file he did not see bear no effect on his opinion.

Another area of preparation of an expert witness concerns his testimony in

relation to Alabama law. Many medical experts use the "possibility" as opposed to the

requirement of a probability of cause or failure to use due care. Go over

“reasonableness and necessity” for medical expenses. Many treating doctors have no

clue why such questions are asked. The witness should be cautioned as to the

nuiances of Alabama law relative to the requirements of proof, the requirements of a

worsening of a condition as opposed to a loss of a chance, and the requirements of

proximate causation relative to injury and death. Remember, under the substantial

evidence rule “consistent with” testimony, if it does not rule out other causes, may not

meet the standard of proof. Further, before even identifying the expert, look for those

skeletons in the closet and what explanation, if any, might be given to any prior

problems the expert may have had.

Finally, school the expert on “know when to hold em, know when to fold em”.

Give when necessary - hold if you are right. Do not argue with the lawyer - do not be

evasive.

V. CONCLUSION

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 As we all know, the best laid plans of mice and men often go astray. By the

same token, regardless of the quality and quantity of preparation, testimony is elicited

either in deposition and/or trial that blind-sides all of us. Many times, there is no

response to some of these blind-side questions. The simple rule that I follow, not only

in dealing with direct examination, but also cross-examination is listen to the answer

and, to the extent possible, let that answer direct you toward your next inquiry.

Remember, however, the hallmark of witness preparation is to tell the truth - creditability

is everything.

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