On several occasions, I’ve engaged in litigation support. For me, litigation support means occasionally choosing to work for law firms that pay engineers to relate how and why machines function and/or malfunction. While it is my obligation to do the explaining, it’s also fair to assume the obligation of a law firm is to serve its clients and make money for the firm. But just to be clear and reaffirm: As professional engineer, I consider it my obligation to be only an advocate of the truth and not to be turned into an advocate of either litigant.
In legal cases, we can reasonably assume that half of the lawyers will make one claim, and the other half make a different claim. That’s the basis of the adversarial legal system, and it’s not my place to critique it here. Unfortunately, engineering “experts” sometimes become advocates, That’s not good. Don’t get me wrong: I like being paid for my work. But I decline opportunities to become involved with individuals and firms that don’t want me to “call it as I see it,” or who argue over the validity of the basic laws of physics.
Let’s suppose you, as an engineer or industry expert, agree not to compromise your integrity and become involved in some type of litigation. You accept work from the side that allows you to be truthful and to divulge your expertise in a forthright and candid fashion. You still might find yourself sitting across from the opposing side during a deposition, however. Being deposed no longer has the same meaning it had in the original English, i.e.,someone was sent into exile. Today, it basically means giving answers under oath. The folks questioning you could have an agenda that we can’t even allude to without the risk of being sued for slander.
An opposing attorney might want to establish inadequacies of your work background or performance. Specific questions could relate to your education, experience, publications, presentations, prior involvement with law firms, compensation, and the like. Even your accent or way of speaking could be brought in (as mine was on one occasion).
The questioning attorney would try to freeze you into certain positions on all relevant facets of the case at hand, and then explore the adequacies or inadequacies of your investigations, the correctness of assumptions, the titles of any books and articles consulted, and so forth. Significant time would be spent on obtaining concessions from you and trying to trap you in a contradiction. If that happened, the questioning attorney might ask to have you impeached, i.e., dismissed from the case.
SURVIVING A DEPOSITION
I really don’t want to get into the utterly absurd statements that I’ve heard while sitting in as some engineers gave their depositions. Suffice it to say that I’ve seen more than one engineering “expert” come up with outlandish claims. One even signed an affidavit that simply didn’t represent the facts of the case. When his naivety was quickly exposed by opposing counsel, the embarrassed engineer squirmed. Everyone in the room perceived the ethics of the engineering profession to have moved down another notch. That day, I jotted down these thoughts on how engineers and other industry experts can survive depositions without compromising their integrity:
1. Stick to the truth. Your attorney knows your findings and your sentiments. If he does not like them, he should not have you sitting there being deposed.
2. Listen to the question. Make sure that you understand it. When in doubt, ask the court reporter to read it back to you.
3. Again, listen to the question! Occasionally, there may be a bit of trickiness or a potential trap in the questioner’s phrasing. Ask the attorney to rephrase the question, but do not let him/her use questions to rephrase your answer.
4. Answer the question. If need be, slow down. Think it through. And always listen to a question in full before answering.
5. Do not volunteer information and do not be “routinely helpful.” By the same token, don’t allow inadvertent misconceptions to prevail if they would affect your integrity and professionalism.
6. If you would like to take a break, ask for one. Do not talk with the opposing counsel during breaks. You also cannot confer with your attorney during breaks.
7. It’s quite proper to answer “I do not know,” assuming, of course, that is the truth. If you, indeed, do not remember, say so without any reluctance.
8. Listen to your attorney’s objections. They could serve one or more of the following purposes: (1) he/she could be making a legal point; (2) he/she could be “sending you a signal” (body language, perhaps); or (3) he/she might want to break the questioner’s stride.
9. Realize that the questioning attorney’s statement “non-responsive” generally means that he or she did not like your answer, no more, no less.
10. Include themes or underlying thoughts in your answer, if you must redirect a deposition toward important points the prevailing line of questioning might not allow you to make otherwise. Make your answer “unreadable at trial” by inserting your expert knowledge in this fashion.
11. If you are interrupted, complete your answer. Remember that you have the right to fully answer the question, and that you are never restricted to giving “yes” or “no” replies, if doing so would put a spin on the truth.
11. Answer repetitive questions consistently and truthfully.
12. Keep in mind that the real purpose of the deposition is to allow you to clearly state your expert opinion within the basic framework of the question-and-answer format deemed appropriate by the country’s legal system. The purpose is not to let you give this opinion without structure, or to convince lawyers, or to score points, or to vent frustration.
13. Avoid mistakes and inconsistencies which could damage your credibility at trial and your reputation overall.
14. Maintain proper posture and positive voice.
15. Don’t let past questions worry you. Perfection is impossible. Your goals should be excellence and clarity.
16. Do not be concerned with upcoming questions.
17. Do not proffer a guess. Only tell what you know, no more, no less.
18. When shown a document, read the entire document.
19. Tell the truth. And stick to the truth.
THE HUMAN FACTOR
Never forget that machines fail for a reason. Without a single exception, the reasons are always traceable to decisions, commissions, omissions, or whatever prompted a worker, manager, supervisor, or chief executive officer to exercise judgment or, perhaps, decline the use of judgment.
For your part, resolve to get involved in litigation support only in causes and subjects that you have mastered. Above all, be convinced that sticking to the truth will never fail you. Conversely, becoming an advocate of anything other than the truth may cause serious grief.TRR
ABOUT THE AUTHOR
Heinz Bloch’s long professional career included assignments as Exxon Chemical’s Regional Machinery Specialist for the United States. A recognized subject-matter-expert on plant equipment and failure avoidance, he is the author of numerous books and articles, and continues to present at technical conferences around the world. Bloch holds B.S. and M.S. degrees in Mechanical Engineering and is an ASME Life Fellow. These days, he’s based near Houston, TX.
Tags: reliability, availability, maintenance, RAM, professional development, litigation support, forensic engineering