Determinación de dureza

Deposition Testimony

In Chapter 10, techniques for writing a good toxicology report were described.

In this chapter, useful techniques for giving a good, honest, effective, and truthful deposition testimony are given. The retaining attorney may give the toxicology report to the opposing attorney. The opposing attorney may request your deposition to understand the issues involved in the case and to go over your testimony at the trial.

11.1 What Is a Deposition?

A Deposition is an oral testimony of a witness taken in an out-of-court set-ting. This testimony could be used for discovery purposes and could be used later during the trial in a court. In a majority of U.S. states, depositions are referred as examination before trial (EBT). The testimony is taken from the expert witness under oath and the oath is administered by an official court reporter. This official court reporter records proceedings of the deposition.

There is really no difference between the testimony in the courtroom and the testimony taken at a deposition except that there is no judge presiding in the latter situation. Usually, the witness, the attorneys, and the court reporter are present. Depositions are usually conducted in an opposing attorney’s office or a court reporter’s office and rarely at the workplace of a witness. The trial judge will make rulings over inadmissible matters. The attorney represent-ing the opposing side calls for a deposition to find out the facts and issues involved in a case. During deposition, only the attorney questions the wit- ness. The person who is deposed is called the deponent. Since you are testi-fying under oath as an expert witness in toxicology, there will be penalties for perjury for knowingly testifying something that is not true. Whatever a court reporter records, a transcript will be made and a copy will be pro- vided to the expert toxicologist giving a deposition testimony to make cor-rections if needed. Except for minor corrections, making substantial changes to answers to a specific question will seriously affect ones credibility. Because of the deposition testimony, the opposing attorney knows what you are going to say at the trial. The purpose of taking a deposition is to gather information and to find out what is going on in the case. Opposing counsel would like to know the facts, the events, and how they occurred; the weaknesses in their

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case; and the strengths and weaknesses in the retaining counsel’s case. It is also used to confirm what the opposing counsel knows and the best legal and factual theories he or she has about the case. Depositions are very useful and may become the groundwork for preparing to go to trial. Depositions allow opposing counsel to get spontaneous and unrehearsed answers from the expert witness.

11.2 Preparation for a Deposition

A toxicologist always reviews the documents that were used and cited in the report to reach conclusions and opinions in the case. A careful and thorough review of the documents is necessary to give a good, honest, and truthful deposition testimony. Discuss with the attorney the issues that may come up during your deposition. Listen to the question asked by the opposing attorney carefully before answering. If you do not understand the question, ask the attorney to repeat it. If you do not know the answer, say you do not know. You can always refuse to answer a hypothetical question or say you do not know the answer. Answer the question without giving an elaborate explanation or justification of your answer. Remember to speak clearly and politely without getting angry. Never lose your composure.

You have every right to confer with your attorney during the deposition. If you are tired, request a break. The opposing attorney has a right to look at the documents you have brought to the deposition. Finally, always tell the truth. Do not let the opposing attorney put words into your mouth. Do not be afraid or intimidated; while at the same time, do not make jokes with the opposing attorney. Be aware of a leading question and if the opposing attorney asks a leading question, take a moment to understand the question and then answer.

11.3 Civil Litigation

Depositions are mostly taken in civil cases. If the witness is not a party to the lawsuit, a subpoena must be served to give deposition testimony if he or she is reluctant to do so. The attorney who ordered the deposition usually starts asking questions at the deposition. Depositions are usually taken for no more than 7 hours in a given day. A deposition gives all litigants a window to the evidence that exists in the case. After a number of witnesses have been deposed, the litigants have enough information to predict the outcome of the case if it goes to a trial. The parties can compromise and reach a settlement, avoiding additional cost of litigation. Deposition transcripts are submitted for summary judgment.

11.4 Criminal Litigation

In the United States, depositions may be taken in criminal cases; however, each state has its own laws that govern the deposition process. If a toxicolo-gist is working for a hospital and the case involves laboratory analysis, he or she is rarely called for depositions. However, if the toxicologist is working as an expert witness with an attorney, he or she may be asked to give deposi-tion testimony. The depositions in criminal cases are taken from an expert witness before a trial so that their testimony can be used if he or she is not available to come to court for a trial.

Bibliography

1. Feinman, J.M. Everything You Need to Know About the American Legal System.

Oxford University Press, New York, 2006.

2. Bonfield, L. American Law and the American Legal System in a Nutshell.

Thompson/West, St. Paul, MN, 2006.

3. Bergman, P. and Moore, A.J. Nolo’s Deposition Handbook, 3rd ed. Nolo, Berkley, CA, 2010.

4. Malone, D.M. and Hoffman, P.T. The Effective Deposition Strategies, 2nd ed.

National Institute for Trial Advocacy, Notre Dame, IN, 2001.

5. Wikipedia. Deposition (law). http://en.wikipedia.org/wiki/Deposition_(law).

6. Lawyers.com. Criminal depositions: preserving witness testimony. http://crim- inal.lawyers.com/Criminal-Law-Basics/Criminal-Depositions-Preserving-witness.testimony.html.

7. WORLDLawDirect. How to prepare for a lawsuit. http://www.worldlawdirect.

com/article/556/how-prepare-lawsuit.html.

8. McCarter, G.W.C. The purpose of your deposition is to help the other side.

http://www.mccarterhiggins.com/deposition_advice.html.

9. Roth, L.M. Guidelines for giving your deposition. http://library.findlaw.

com/2000/Aug/1/129259.html.

10. Giving deposition testimony. http://www.kenkoury.com/depo.htm.

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Court Testimony

In the previous chapter, techniques for giving an effective and truthful deposition testimony were given. In this chapter, a brief description of techniques to give effective, honest, and truthful court testimony is given.

Testifying in court on the witness stand is an art that can be mastered by practice and experience. It is your duty as an expert witness to give an hon- est and truthful opinion to the court. Doctors, toxicologists, and biomedi-cal scientists not familiar with court procedures fear testifying in court.

They fear cross-examination by aggressive lawyers. One need not be afraid if one understands and prepares adequately for court testimony. Indeed, it can be a rewarding experience. Here are some tips to help you testify effec-tively in court.

12.1 Expert Witness

An expert witness is a professional by virtue of his or her education, train-ing, and experience, and has specialized knowledge in a particular subject beyond that of the average person. The court could rely upon an expert’s opinion about the facts and evidence in the case. An expert witness has a legal responsibility to tell the truth to the court. Perjury by an expert witness is a punishable crime in many countries. In the United States, both sides in civil lawsuits use expert witnesses and they may give completely divergent and opposing opinions. Some experts are called hired guns and may express their opinions, based on junk science. Expert witnesses charge fees, which are paid by the party commissioning them. A toxicology report written by an expert witness and his or her opinions are important components of civil as well as criminal trials. Expert witnesses are supposed to prepare current curriculum vitae based on which the attorney that hired them requests the court to admit them as expert witnesses in toxicology. A toxicologist may be asked on the witness stand to tell the court all the fees and expenses that he or she is charging for writing a toxicology report and giving testimony at deposition and at the trial.

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