Top tips for deposing an expert witness
In 20 years of practice, Anita Ventrelli, a partner at Schiller DuCanto & Fleck LLP, in Chicago, has chosen not to depose an expert witness only once. The expert’s report “was so bad that I knew that if the expert had no chance to add in any other methods, reasons they did what they did and how they ran their numbers, their report would not get into evidence,” Ventrelli recalls.
Generally, there are very few circumstances in which you would not depose the expert, says Ventrelli in the CLE “Conducting Effective Expert Witness Cross Examination: How to Impress the Judge.”
Gear the deposition toward identifying
and understanding key weaknesses
in the report.
“In the deposition, it’s your chance to pin the expert into everything they did and didn’t do, everything they looked at, everything they considered,” she says. “So it’s really about making sure you understand their report.”
At the deposition, adds Steven Peskind of Peskind Law Firm in St. Charles, Ill., “it is who, what, where, when and how, not unlike a good direct examination. [You let them] tell you everything they need to tell you on a particular subject matter, boxing them in, making sure there’s nothing else, so they can’t surprise you at trial. And those are the building blocks of getting ready for your cross [examination].”
In the CLE, Ventrelli and Peskind offered their top 10 considerations when deposing an expert witness:
1. Gear the deposition toward identifying and understanding key weaknesses in the expert’s report.
2. Do a thorough and incisive reading of both the opposing expert’s report and your expert’s report before the deposition. Isolate the differences.
3. In the deposition, ask the other expert to explain why he or she did things that account for the differences without pointing them out as differences. Don’t waste deposition time on things both experts did in a similar fashion.
4. Make the expert acknowledge each area where he or she exercised subjective judgment in developing a number, choosing a method or applying the method.
5. Make the expert state the reasons for adjustments made to financial statements, and get the expert to acknowledge his or her subjectivity in making them.
6. Make the expert identify with specificity what work he or she has done in the subject company’s industry.
7. Identify each principle expressed or relied upon in the report and get the expert to state the back-up authority for each principle. If there is no authority for a principle the expert uses, get that into the deposition transcript.
8. Before the deposition, identify if the expert is using a principle or authority that is contrary to standard evaluation methodology, texts or pre-eminent articles in the area. If there are differences between what the expert does and what the expert is supposed to do per recognized authorities, make the expert acknowledge what the authoritative texts or methods require and acknowledge that his or her report did it differently.
9. Go over the math used in the report. Make studied decisions about whether or not to focus on particular numbers used in the report, because calling attention to these things can sometimes eliminate a point for cross examination by flagging the expert to something he or she needs to correct in the report. On the other hand, sometimes exposing weaknesses in depositions helps get cases settled.
10. Check expert credentials; they can sometimes be a deciding factor in a close case. Get and go through the expert’s most current C.V. and get the expert to explain what he or she did to obtain each of his or her credentials. Before the deposition, do your own research on the credentials he or she has. Knowing whether the credential requires classroom hours, practical experience and submitting reports and/or peer review can all make a difference.
This CLE was sponsored by the Section of Family Law, Section of Litigation, Young Lawyers Division, Solo, Small Firm and General Practice Division and the Center for Professional Development.
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