June 03, 2014 Articles

Experts and Expert Depositions in Class Actions

Courts often require a plaintiff to provide detailed evidence in support of the certification motion.

By Daniel J. Barsky and James Langenfeld

Economic experts can assist in demonstrating that Rule 23’s prerequisites have or have not been satisfied. An expert may present economic evidence on the presence or lack of conflict within the putative class, whether class-wide impact is demonstrable through common proof, and the existence or nonexistence of a feasible and formulaic approach to measuring damages. The expert typically focuses on several key considerations, including the following:

• whether all class members have suffered injury due to the challenged conduct;

• whether the plaintiff can prove the elements of a claim (e.g., market definition, market power, and anticompetitive effects in antitrust cases) with evidence common to class members;

• whether aggregate damages can be estimated with a common formulaic method based on standard and well-accepted economic techniques; and

• whether common evidence exists sufficient to do these analyses, including proof of injury and damages, or whether specific evidence is needed for each class member.

Courts increasingly are requiring that the plaintiff provide detailed economic evidence in support of the class-certification motion See, e.g., “The Law and Economics of Class Actions: Yesterday, Today, and Tomorrow,” in 26 Research in Law and Economics (James A. Langenfeld ed., 2014). For example, in antitrust cases, courts are requiring such evidence to show that common impact can be proven at trial with evidence and analytical methods that are common to members of the class, rather than through individualized proof. Courts are requiring not only a description of the economic theory and econometric methodology that may be used to demonstrate common impact at trial but also that the economic expert actually apply these methods to the evidence to show that such common proof is feasible.

Expert Depositions
While counsel can choose the most qualified expert available, an expert’s utility is limited to his or her ability to effectively convey his or her opinions, both during deposition and at trial. Generally, counsel deposing an opposing party’s economic expert covers the following topics: (1) determining that the expert fully complied with disclosures required by Rule 26; (2) identifying all documents, information, and data that the expert considered and how the information was used in formulating the expert’s opinions; (3) identifying all assumptions that the expert used (or decided not to use) in deriving opinions and the basis for the expert’s assumptions; (4) identifying how the expert’s methodology differs from that he or she used in previous engagements and publications or used by other experts; (5) identifying follow-up work that the expert intends to complete and the reasons for the same; (6) seeking admissions on flaws, limitations, or factual inconsistencies in the expert’s opinions and data analysis; and (7) seeking admissions favorable to the methodologies, data, and conclusions of counsel’s own expert.

Cross-examination may expose flaws in the expert’s opinions. Deposition questioning also may reveal how the opposing party will seek to rebut the expert’s opinions and data analysis, which may aid the expert in preparing to testify at trial. Transcripts of expert depositions will be used for summary judgment briefing and may be used at trial for impeachment, so the expert should be thoroughly prepared to explain and defend the opinions, analysis, and factual and theoretical grounds set forth in the expert’s reports. Moreover, due to the importance of expert testimony in summary judgment proceedings and at trial, a successful expert deposition can make the opposing party question its likelihood of prevailing and help facilitate settlement.

An expert, well prepared for deposition, can help your case by providing clear, concise testimony that can give you the upper hand in a “battle of the experts.” An ill-prepared expert can cause serious harm to the case and provide the opposing party with ample fodder for cross-examination during trial.

We have identified 11 tips that you may want employ when preparing your experts for deposition to address some of the potential pitfalls and make the deposition of your expert as valuable as possible.

Deposition Preparation
There are several things you and your expert should do prior to the day of the deposition:

1. Have a general discuss the whole case. While your expert may opine on only a small portion of the case, a general overview of the case should be given to the expert prior to deposition. This will help prevent the expert from inadvertently making a statement that harms a different part of your case because he or she was unaware of a particular issue, and it will also help the expert understand how his or her opinion fits into the whole of the case. If other expert testimony is being offered, the reports from other experts should be provided to the testifying expert so that he or she is familiar with them.

2. Establish the four corners of the expert report and the key points of basic opinions. The expert should be able to give an “elevator speech” that succinctly sums up his or her opinions. Doing so will give the expert a fallback position to return to under repeated or confusing questions. Some experts may need to be coached to keep their testimony within the four corners of the report and to stay “on point.” It is important to combine this tip with the first tip for all of your testifying experts. Doing so can help prevent your experts from accidentally appearing to contradict each other when responding to hypothetical questions and may help your experts reinforce the opinions of your other testifying experts.

3. Review the report, other reports, and documents on which the expert relied. It is important to ensure that the expert’s opinion is consistent with all prior work he or she has done. Opposing parties frequently go to great lengths to discover previous, inconsistent statements made by the expert in publications or testimony, sometimes even reviewing doctoral theses previously approved or supervised by that expert. The expert needs to ensure all prior work is consistent or be able to explain any apparent differences.

With scholarly journals, online collections of journals, online journal search engines (such as JSTOR), and libraries online, it is becoming increasingly easy for counsel to find opinions that contradict your testifying expert. You should search for conflicting opinions prior to preparing your expert for deposition and review any potentially conflicting opinions with your expert. When reviewing potentially conflicting publications, it may be helpful to consider them as you would potentially conflicting case law—consider the age of the conflicting opinion, whether subsequent developments have rendered the conflicting opinion obsolete, whether factual differences lead to a different result in your case, whether the conflicting opinion is directly relevant, and the prestige of the publication.

4. Review past decisions mentioning your expert. There are virtually no experts with experience who have never had an unfavorable judge’s ruling. You should be aware of such decisions, and your expert should have clear answers to questions that might arise about any negative decisions. One should also focus on the nature of any criticisms, taking into account the age of the opinion and the number of times the expert has been qualified and has testified since any such decision, and distinguishing differences such as type of case, different facts and circumstances, and different methodologies used.

5. Describe the deposing attorney’s prior tendencies. If there have been prior depositions in the case, provide any insight into the deposing attorney’s tendencies. This can help prevent the expert from being caught off-guard. Make sure to review tendencies designed to elicit conflicting responses, such as repeating questions, misstating prior testimony, preventing complete answers, or asking questions out of order or in a confusing order. If known, review your opponent’s tendencies when asking hypothetical questions of experts.

6. Review practice questions. You should review practice questions with your expert, just as you would with any other witness. Play the role of opposing counsel with your expert, incorporating elements from tips 3 and 4, above, into your mock line of questioning. Review potential hypothetical questions with your expert as well as any conflicting or potentially conflicting opinions.

You should also review with, and coach the expert on, the next three tips.

During the Deposition
Expert depositions present unique problems because experts are asked to provide opinions and respond to complex hypothetical questions, and experts tend to have more nuanced answers than lay witnesses. The following are some tips to assist in handling these issues:

1. Direct answers. Experts, like all witnesses, should listen carefully to questions and give direct and complete answers, but many questions posed to experts do not have simple “yes” or “no” answers. You may need to remind the expert to make the deposing attorney ask questions and not to offer thoughts beyond the question or answer questions implied, but not asked, by the deposing attorney. Remember, experts are normally highly educated people, many of whom are professors, teachers, or prolific writers, and are used to professing their opinions. Because of this, expert answers can become mini-lectures, resulting in the expert divulging far more information than necessary—or wanted. The less the expert says, the lower the chances are that your opponent will extract an answer that can be harmful to your case. Practice with your expert to help ensure the expert provides short, succinct, direct answers.

2. Compound questions. Coach the expert to identify compound questions and to respond to each part separately and distinctly. The expert should repeat each part of the compound question on the record to ensure the record is clear as to which portion is being answered. Remind your expert that it is acceptable to ask opposing counsel to break a compound question into subparts and to ask that a confusing question be restated. Remind your expert that he or she is only present to be an expert on a particular subject, not an expert on being deposed, and that asking for clarification and restatement of a question is perfectly acceptable.

3. Hypothetical questions. The expert should respond to open-ended and hypothetical questions with answers that help to explain the expert’s opinions, but should avoid unnecessary digressions. Remind your expert that it is OK to testify that the hypothetical takes the expert beyond his or her field of expertise or beyond considerations made by the expert when preparing her or his report. It is usually easier to supplement an expert report than it is to avoid an inaccurate answer given in the heat of a deposition without adequate thought and consideration. Make sure to practice possible hypothetical questions that may be asked, considering your opponent’s potential theory of the case, prior to the deposition.

Housekeeping Matters
Finally, there are a few things you may wish to do to ensure your expert is able to withstand what may be up to seven hours of questioning. All practitioners have seen witnesses wear down and give sloppy answers as a deposition grinds toward conclusion. Once the deposition starts, there is little you can do to control the deposition to keep your witness “fresh.” However, there are some things you can do to help avoid an exhausted expert and sloppy answers:

1. Schedule. Finish deposition preparation by dinner the night before to ensure there is adequate time for a meal and sleep prior to the day of the deposition. Be mindful of your expert’s normal schedule—endeavor to make the deposition begin and progress along that normal schedule. Attempt to take a lunch break when the expert would normally eat lunch.

2. Breaks. As you would with any other witness, pace your breaks and make sure you take them every one to two hours. Prior to the deposition, discuss with your expert how frequently she or he would like to take a break. Is the expert used to working in blocks of time of a particular length? If so, try to take breaks to divide the deposition into the same or similar time intervals.

Hopefully, these tips will help you the next time your expert is being deposed.

Keywords: litigation, experts, depositions, class actions

Daniel J. Barsky and James Langenfeld – June 3, 2014

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