Taking an Expert Deposition - ABA YLD 101 Practice Series

By Mark P. Chalos

Taking an expert deposition is a unique opportunity to advance one's own case through a witness who has been selected, hired, and prepared by the opposing side. As with most aspects of the legal practice, capitalizing on the opportunity, rather than just surviving the deposition, requires preparation, forethought, and a healthy dose of chutzpah. Here are some suggestions for taking the expert deposition:

  • Read and re-read the expert's Rule 26 disclosure or report. Look for "weasel-words." The disclosure or report is usually the result of a negotiation process between the attorney and the expert. Words are chosen carefully, so look for words and phrasing that sound awkward - they might be red flags for a soft spot in the expert's opinions.
  • Learn as much as you can about the witness' area of purported expertise. Remember that you are wading into an area that the witness will have far more knowledge and experience than you. So, in most cases, you will not be able to make much headway by trying to sound like more of an expert than the witness. But having a comfort and knowledge level will greatly increase your ability to identify areas where you can directly or indirectly attack an expert's conclusions.
  • Learn the lingo, but make the expert answer questions in plain English. Experts will often use the technical terms they are most comfortable with. Technical terms might also allow the expert to wiggle when subjected to cross-examination at trial. Press them to translate into plain English so the jury can understand when you are scoring points at trial.
  • Locate any prior testimony of the witness and any materials published by the witness. Experts often have given testimony in prior cases and might have made statements, off-handed and otherwise, that will help your case.
  • Ask the witness whether he or she has ever had his or her testimony excluded by a court. Prior exclusion of testimony, particularly on the same or similar subject matter, can be persuasive in connection with a motion to exclude in the present case.
  • Consult with your expert about questions to ask and areas of weakness in the opposing expert's opinions. Also consider having your expert attend the deposition. Questions that your expert suggests, or ideas that the testimony might inspire for your expert, can be invaluable. In addition, having a peer expert present could have the effect of tempering the witness' testimony.
  • Define specific goals for the deposition. Identify and commit to writing realistic goals that you seek to accomplish during the deposition. A script is not necessary, but a checklist is useful for keeping track of what points you have scored and will help you avoid missing an important line of questioning.
  • Identify points from your case that their expert will be likely to concede. Speak with your expert about the areas where the opposing expert and your expert will agree. Seek to have the opposing expert confirm statements that are favorable to your theory of the case. It can be powerful for the jury to hear a tight cross-examination that consists of mostly the opposing expert supporting your case theory.
  • Know the applicable evidentiary rules and case law (i.e. Daubert). This is a basic point of paramount importance. Causing the opposing expert to be excluded could significantly benefit your client and sometimes leads to resolution of the case in your client's favor. Know the law about the grounds for exclusion and admissibility of expert testimony before the deposition. See, e.g., Fed. R. Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 59 U.S. 579 (1993); Kuhmo Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999).
  • Carefully review the expert's curriculum vitae. Ask the witness questions about the document, including asking her or him to review the document to confirm that there are no errors or misstatements. Seek independent confirmation of anything that looks suspicious, and consider spot-checking credentials.
  • Consider videotaping the deposition. Videotaping captures gestures, pauses, eye-rolls, sighs, and other subtle behavior in which witnesses often engage. Experts, by their nature, have spent many hours in the laboratory and reading books. As a result, they are sometimes so focused on the substance of their testimony that they fail to consider the way they appear.
  • Explore the assumptions on which the expert based her or his opinions. Pay particular attention to facts that will be in dispute or facts that you believe you will be able to prove. If you can successfully attack the assumptions underlying an expert's opinion, you might be able to persuade the court to exclude the expert's testimony or, at the least, make points in front of the jury that will go a long way towards discrediting the expert's opinions.
  • Listen for what the expert does not say. Where an expert appears to be choosing words carefully, he or she might be trying to tip-toe around a minefield. Poke around, and you might discover a soft area in the opponent's case.
  • Ask the expert about sources of employment and amounts of income. For example, find out whether the expert testifies exclusively for injured persons or for large companies that have been accused of wrongdoing. Developed through skillful questioning, the fact that an expert has made a living exclusively on one side of lawsuits can be an important jury point. Because you will also be paying your expert(s), however, that the opposing expert is paid for his or her work will ultimately not be a major point at trial.
  • Expect to hear testimony that supports your opponent's case. This might sound trite, but remember not to get discouraged or frustrated. The expert is the only witness in a case who is selected and paid by your opponent because he or she will (presumably) give testimony that supports your opponent's case. Remember the larger context and do not let it unduly shake your confidence.
  • Don't be afraid to question the witness. Some experts rely on their degrees and accolades to intimidate opposing attorneys. Do not be cowed. With preparation and solid examination, the more pompous the witness is, the harder he or she will fall at trial.
  • Make sure you have elicited all of the expert's opinions. One way to do this is to ask a question that summarizes the opinions, such as; Q: "You have testified that you opine that [Opinion #1], [Opinion #2] and [Opinion #3], correct? A: Correct. Q: Have you arrived at any other opinions which you are prepared to offer in this matter? A. No." If the witness instead says there are more opinions, you have the opportunity to follow up right then about assumptions, bases, and the like.
  • Most importantly, relax, and remember that with preparation and forethought, you can handle the expert deposition as well as any seasoned trial lawyer.

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About the Author

Mr. Chalos is an attorney with Lieff Cabraser Heimann & Bernstein in Nashville, Tennessee. His practice focuses on plaintiffs' personal injury and mass tort litigation. Mr. Chalos was chair of the ABA Young Lawyers Division Criminal and Juvenile Justice Committee (2004-2005) and will serve as YLD Liaison to ABA Tort Trial and Insurance Practice Section Professionalism Committee. He also serves as a Board Member of the Nashville Bar Association YLD and chairs the NBA YLD Continuing Legal Education Committee.

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