Can an Expert Witness Refuse to Answer Questions in a Court-Ordered Deposition?
An expert witness is a key part of most court cases; in either the plaintiff’s position or the defense’s position. They bring critical perspectives and informational points to the court to help determine verdicts that are fair and in accordance with the law.
However, they differ from normal witnesses in some major ways, and they have their own sets of legal rules they have to abide by.
One thing you might be wondering about is whether or not an expert witness can refuse to answer questions in court-ordered depositions. If so, we’re going to set the record straight in detail.
However, before we can get into that, you need to understand exactly what an expert witness is, how they differ from normal witnesses, and a bit of information about how they’re used.
So, let’s get started.
What is an Expert Witness?
When you think of a witness in a court case, you typically think of someone who was present or nearby when an event occurred. For an extreme example, you might think of someone who was in a gas station it was robbed, and they got a visual of the person who committed the robbery; thus, they can tell the court exactly what they saw and help bring the criminal to justice.
You might also think of someone who is connected to the participants of a case and can vouch for their character or provide insight into their general behavior and credibility. Those are character witnesses.
An expert witness isn’t like that. They don’t get involved in a case because they were around when the event in question took place, and they don’t know the participants in any personal way that would persuade their opinions. In fact, they’re supposed to have no previous connection to either side of the court case.
Instead of focusing on presenting information from hands-on experience with the event in question or providing insight into a participant’s character, an expert witness is someone who is highly skilled in a particular field that is relevant to the case. So, if there is a civil trial where the plaintiff is suing over a slip and fall accident and claiming that their spine was horribly disfigured during the incident, an expert witness for the plaintiff’s team might be a doctor who specializes in spinal injuries or overall back health. They wouldn’t be the doctor who provided treatment, and they’d have no real bias towards the plaintiff. They would simply be invited to the case for their knowledge of the topic.
How are Expert Witnesses Used in Court Cases?
Since expert witnesses are quite a bit different than normal witnesses, they’re used differently.
Keep in mind, that an expert witness isn’t supposed to be tied to either party member, and they aren’t supposed to have participated in other cases involving either party member. They’re essentially neutral parties.
So, expert witnesses aren’t just people that are pulled in at random because they know about the case. Each team hand picks an expert witness by interviewing several candidates before the case really kicks off.
This is because the expert witness needs to align with the team’s goals; despite being neutral parties. After all, a legal team wouldn’t want to hire an expert witness who will take the stand and provide information that goes directly against their argument.
Using the slip and fall example from above, imagine if the plaintiff suing over their spinal issues hired a doctor who took the stand and promptly told the court “It’s usually no big deal. Some Ibuprofen will make them as good as new in most cases, and most of my patients are fine with a week of rest.” That could be disastrous for the plaintiff if they’re looking for a reward in the form of damages based on their inability to function at 100% capacity.
However, if they hire an expert witness who is of the strong belief that even their minor back problem is devastating and can keep people down and away from work for weeks, they’ll stand a much better chance of winning.
During the interviewing process, each team will try to find an expert witness that generally aligns with the message they’re wanting to give the court.
The expert witness will get called up throughout the trial to provide their expertise and understanding of similar incidents.
What is a Court-Ordered Deposition?
A deposition is different than an in-trial testimony. This is something that is done before the case really starts, and it’s designed to get the vast majority of the evidence laid out in an organized format for both sides to examine before the case starts.
This is crucial to the case because most often, a legal team’s entire argument can be built around the evidence they see during the deposition phase. They’ll see what the other side is bringing to the table, evaluate the evidence they’ve brought, and then work out ways to make their evidence look more notable or credible than that of the opposing legal team.
This is also when expert witnesses are first brought in.
The expert witness will come to the court, out of the trial, and be asked a series of questions. Their answers will be recorded, and most likely brought up during the trial itself. At which point, the expert witness might be required to take the stand and explain their points directly to the court in a more official sense.
This is why, if you’ve ever watched a court case, the opposing team’s lawyers might ask questions about what the expert witness said earlier, even if it’s technically the witness’s first time taking the stand during the trial.
All depositions, whether from expert witnesses or other participants, are legally binding and taken under oath; just like testimonies taken on the stand. They are also officially recorded by a court-appointed officer of the court, and those text recordings are used throughout the trial. They can even be cross-examined to see if there are any changes in a participant’s answers between the deposition phase and their actual testimonies throughout the trial.
Expert Witnesses and Court-Ordered Depositions
Now, you know what an expert witness is, what a deposition is, and a little about how the two interact with each other. So, let’s get to the big question. Can an expert witness outright refuse to answer questions during a court-ordered deposition?
Well, the answer is a little complicated.
For the most part, the answer is no. When a deposition is court-ordered, and the expert witness is brought in for the deposition phase, that expert witness is forced to show up, swear an oath, and participate to the fullest extent of their ability to do so. Coming to the deposition, swearing the oath, and then just outright refusing to answer questions is not acceptable, and it’s considered to be contempt of court; or refusing to participate in the trial process when requested to do so.
If an expert witness is in a deposition, and the opposing team is asking them questions, they are expected to answer truthfully, promptly, and in full.
Providing half-answers or trying to talk their way out of truthfully answering a question can also be considered contempt. After all, if the expert witness is asked to provide insight into a specific aspect of the case, and they just start rambling about how complicated that answer is, they’re not really answering the question. This also poses questions about their credibility as expert witnesses for both sides. You don’t want an expert witness who is actively causing problems with the case, and it’s unnecessarily frustrating for the opposing legal team and the neutral parties in the case.
There is an exception to this, though. Just because the other legal team is asking questions, doesn’t mean that those questions are appropriate or abiding by general courtroom etiquette.
For example, an expert witness might be called to the court to provide insight into the standard of care for psychiatric ward patients. In that case, they could reasonably be asked what standard procedures there are for dealing with mentally ill patients, what behaviors are considered acceptable, the types of treatments used, etc. However, if the opposing legal team starts bombarding them with irrelevant questions about their personal life, such as if they drank the night before the trial, that could be considered an inappropriate question.
If that happens, either the expert witness’s legal team, or the judge themselves, can pick up on the inappropriate nature of the question, appeal for the question to be struck from the record in terms of the witness’s legal team taking action, or the judge might demand that the witness not answer the question and for the opposing legal team to remain on topic.
It is in that type of situation that it is perfectly acceptable for the expert witness to refuse to answer a question despite being under oath to participate truthfully and fully.
However, the expert witness can’t make that call on their own. It has to be supported by the authority figure mediating the trial. Regardless of what is asked, if the judge rules the question to be acceptable, the witness must answer it truthfully and in full.
There’s also the case of a deposition or interview not being court-ordered. The opposing legal team can’t propose an unofficial meeting pre-trial, demand answers from the expert witness, and more or less force the witness to do what they want. The expert witness is only required to participate during court-ordered depositions or the trial itself.
Also, some states have their own guidelines for what is considered acceptable and what isn’t. So, in one state, the expert witness might have no way out of answering uncomfortable or downright inappropriate questions. In another, the expert witness might have a bit more power to petition against questions they’re not sure of or aren’t comfortable asking, and the punishments for not answering questions tend to differ dramatically from municipality to municipality.
Consequences of Refusing to Answer Questions:
Since this falls under contempt of court, the proposed punishment for not answering court-ordered questioning might seem a bit harsh. It’s jail time. In fact, in most states, contempt of court can come with up to six months of jail time and a misdemeanor charge on your record. In terms of being an expert witness, it’s also unlikely that you’ll be accepted as an expert witness again in the future.
However, that doesn’t mean expert witnesses need to be afraid of serving the court. No one is going to jail for needing a moment to collect their thoughts or having trouble with certain questions.
In fact, jail time is extremely rare.
The threat of jail time is mostly used as a deterrent to maintain a smooth court process and ensure the participation of those called upon to perform their civic duty. It’s not just a state-level attempt to toss people in jail, and judges typically do their best to avoid actually acting on contempt claims.
In practice, it’s mostly a case of the person refusing to answer, being told they’ll be held in contempt, and then promptly participating to prevent pushing the court’s limits and risking jail time. In some cases, you might just be removed from the trial.
Hiring an Expert Witness Who Supports Your Case
Hiring an expert witness that tries not to answer court-ordered questions is a bad idea. Not only do they show their lack of professionalism and fail to participate in the court process, but it looks bad on you and your legal team.
Not only that, but since they are required to answer the questions posed to them, you have to make sure all of their beliefs and potential answers line up with your argument. Few things are worse than sending your expert witness off for a deposition, letting them get asked a question that their answer to doesn’t align with your argument, and then losing the case because of that.
Don’t leave that up to chance. At Litigation Legal Insight, we can help you find an expert witness who is professional and aligns with your case perfectly. Contact us today before committing to an expert witness.