A Mantra of this column, and reality of litigation, is that experts can make, and break, our cases. Conducting the discovery deposition of an opposing expert witness is a critical step in a successful case. It is also a major task in trial preparation. Goals are generally to confirm and expose undisclosed opinions, making the expert explain each opinion and the basis for it. This is a time to require the expert to commit to and defend opinions rendered. It is also a primary opportunity to discover information that will impeach the witness and potentially discredit the expert’s testimony. Thorough preparation, substantive research and exhaustive questioning of the opposing expert will best serve the case—potentially avoiding an unpleasant trial surprise, and enhancing your position by weakening the case through discrediting an essential opposing witness.
By the time expert witnesses are deposed, if in State Court, the case has likely had relatively nominal written expert opinion disclosure. Most state disclosures are practically meaningless, but in fairness, the degree of information disclosed truly varies from judge to judge and even attorney to attorney. If in Federal Court, the disclosures should be more substantive. Regardless, the bulk of pertinent fact discovery will be completed in the case by the time experts are testifying on the record. Know your case. Marshall the facts. Consider a time line or outline of crucial facts, and:
In knowing your case, you should be comfortable with any experts you have obtained and their opinions. Many experts routinely testify opposite each other. Find out what your expert thinks about the opposing expert and whatever opinions have been disclosed in the case. Meet with your expert and create a draft outline of questions he or she would ask. Find out what your expert believes are the weaknesses of the opposing argument. Be careful to avoid having an expert create thins for you that are discoverable. Take notes of your own during these meetings, for protection as work product.
Thoroughly review your file—scour it from the Complaint and Answer, through all discovery materials and materials that relate to your own expert witness. Particular defenses will give rise to areas of inquiry, such as whether there is an issue of a sudden emergency to which this expert will speak: a seat belt defense, an allegation that the accident was the result of the negligence of an unnamed party, etc. This deposition may also be an opportunity to clean the Answer of defenses that are asserted but will not be relied upon at trial. Cover each as may be applicable with the expert.
A discovery deposition is a fact-finding mission. This deposition will generally be shown only to the jury for impeachment purposes—so the deposition is not necessarily a place to grandstand. It should be a process of methodical extraction, with counsel careful to consider each area of inquiry. One may have a damaging topic that is best saved for springing on the expert at trial. Exhausting that topic in deposition gives the witness time to prepare for trial and may also tip opposing counsel to something best reserved for more effective presentation later.
Videotape important witnesses—playback of video testimony for impeachment is extremely effective and persuasive. This can also serve well in mediation, showing an adjuster or mediator the witness’ deficits first hand. Many adjusters rely on summaries and never see transcripts, much less video, of an expert.
Discovery is a process, often culminating in the deposition of the defense expert. Doing appropriate written and other discovery before the discovery deposition of the expert is crucial. Propound your expert witness disclosure interrogatories, seeking the maximum of disclosure that your jurisdiction will permit. Study the responses. Have your own expert review those responses, with a goal of assisting you in effectively deposing his or her adversary.
Perform the most exhaustive background search as you can when the expense is justified, relative to the case. Run the expert’s name and company through every major search engine. Browse through to the very end of your results. You might find something amazing buried on page 12, i.e., self-promotion, other business ventures, foreclosures, chat activity, criminal proceedings, cases in which the expert’s testimony made it into a reported decision, etc.
Network KJA and any applicable AAJ listservers for other depositions and tips relative to the expert. Check the KJA and AAJ deposition banks for other testimony.
Work through each opinion that the expert has provided exhaustively. Ask if the list of facts supporting the opinion is exhaustive, or if the opinion is based on any additional consideration. Ask which facts mean more than others, or were given more consideration than others, when formulating the opinion.
Inquire whether your expert has ever given an opinion opposite the current opinion on similar facts. Watch his or her face when answering. Do so even if you have such an opinion for confrontation. It might be discovered later in research, and you will have caught the expert in a material lie if such a find occurs.
Review the expert’s CV. Obtain and read on-topic articles. If there are lists of speaking engagements, use the Internet to research whether old topic outlines, seminar brochures or other information can be found. Look for self-promotion—many experts are better marketers than witnesses. Check for instances of “expert to expert” education, such as classes to learn how to withstand cross-examination or enhance one’s credibility as a testifying expert. Ask the expert for copies of presentations previously made, outlines, videos, notes, etc. Inquire specifically as to whether he or she has ever spoken on the specific issue involved in your case. If so, get whatever is available and as much information about the presentation as possible, i.e., when, to whom, where.
Review the expert’s file. Ask what the expert was asked to do when engaged. Find out what the expert reviewed, and has not reviewed. Check correspondence, notes, and summaries. If there are no notes, find out why there are none. Ask whether the expert is relying on the work of anyone else. Inquire if the expert did his own testing. Review calculations. Check for drafts of reports or disclosures—review revisions. Inquire of the process of preparation of the opinions—were drafts shared with counsel? Showing that counsel drafted or proofed disclosures can effectively undermine the expert’s credibility.
Use learned treatises, and test the witness. Show what the witness does not know about his line of work. Prove your points, or some points that will help you, through the other expert—specifically any points that cannot be truthfully refuted. Some hate to agree with opposing counsel and will fight for the sake of fighting. They cannot stand to lose a point or concede anything. If the expert decides to take issue with an irrefutable opinion, it will show a bias that should cost his or her testimony significant credibility. Confirm the unreasonable, refutable opinion, and move on to your next issue. At trial, enter the learned treatise into evidence or address the point with your expert. You will show that the opposing defense expert is willing to say anything in order to refute whatever point is to be made by your client or expert, regardless of the truth.
Determine how much the expert has been paid with respect to work performed in your case, as well as how much work has been done for plaintiff’s causes versus those of defendants. Obtain and examine the expert’s case list of other engagements. Pull cases with prior testimony where applicable. Contact lawyers who have opposed the expert, and any whom you may know who have proffered him or her. Lawyers “burned” by an expert will generally say so. Should they not, shame on them.
Run the expert through Westlaw, Lexis, or another service’s expert witness data bank. Look for instances in which the expert’s testimony had been limited or struck under a Daubert or other challenge. Ask the expert for instances in which he or she has formulated an opinion that was not permitted into evidence, and ask whether the expert has ever been completely struck from testifying. If such has occurred, contact opposing counsel in the particular case in search of deposition testimony and copies of the motions/opinions underlying the exclusion of the testimony.
Create a thorough outline of your areas of inquiry, but remember, it is only an outline. You have to put the detail into it with your questioning. LISTEN to the expert. UNDERSTAND the answer. FOLLOW-UP on the testimony. Remember, a deposition is an interrogation. Exhaust whatever topic the expert addresses by focusing on the testimony. Then, if you have been led away from your targeted inquiry, return right back to it. Do not get distracted, and be certain, with your outline, that you have exhausted all areas of inquiry planned, as well as all that the expert led you. The outline will protect you. What if something bad happens (for instance, you start to feel ill in the deposition)? Your outline, if done well, is your fallback and protection. You can still work through your outline, and cover what needs to be covered, even if distracted by something. Be organized. Be patient. Be thorough. The worst possible question in a discovery deposition is the one you forgot to ask.
Do not let a professional witness control the dialogue or evade questioning. Stick to your topic and require an answer. Press for answers to your questions. Certify questions to which no answer is given.
Do not let opposing counsel give speaking objections or break your concentration. If that is attempted, object on the record. Do not get angry or drawn into a heated argument. State your case and move on. Keep the focus on the expert. Distraction by a dispute with opposing counsel can frustrate you and impede your quest for information, and it is a common, often effective tactic. Minimize the interruptions by coolly dispatching them as improper on the record. This will serve your purpose in the long run. If necessary, pause the deposition and attempt contact with the court if the behavior continues. Keep it on the record, so that counsel is aware that the Court, or the Bar Association, ultimately may review the transcript and video. Most of all, keep it professional on your part.
Be certain, when concluding, to ask if the expert has provided all opinions held concerning the case, and to further confirm that if any additional opinions are formulated, that he or she will advise counsel and be certain that those are disclosed to you when formulated. Find out if any opinions were formulated that are not being offered into evidence.
At the end of the deposition, take a break. Review your notes. Review your outline. Ask your client and those persons with you if there are any areas that might deserve more attention or any questions they believe should be considered. This is worth reiteration: the worst possible question in a discovery deposition is the one you forgot to ask.
In closing, be prepared. Be thorough. Be methodical. Be attentive. If so, you should be successful in your discovery deposition.
(Originally published in the January/February 2011 issue of The Advocate)