Hectic schedules filled with client demands, looming discovery deadlines, expert report disclosures, procedural rules, and many other factors impact the timing of preparing an expert witness for his or her deposition. The next time you face juggling these often conflicting demands and factors, consider utilizing a two-step approach to the deposition preparation and defense of your expert witness. In addition to the traditional session immediately prior to deposition, plan an earlier separate session approximately two weeks prior to the scheduled deposition, to address important tactical and foundational issues. In the right situation, this two-step approach provides an opportunity to enhance the defense of your expert and appropriately advance your overall case themes.
Most seasoned attorneys are familiar with the preparation that generally immediately precedes an expert witness’s deposition. During this session, counsel typically reminds an expert witness to listen carefully to each question, pause to contemplate the response, and reply truthfully. Counsel may also seek to ease any potential anxieties by setting expectations and avoiding surprises about basic logistics, provide insights regarding opposing counsel’s demeanor, confirm ground rules for communications between breaks, review foundational documents, and perhaps identify opposing counsel’s areas of focus and significant themes. This session also presents an opportunity to revisit the tactical and foundational issues that were initially raised in the first session.
So let’s rewind to the aforementioned first session. Shifting the tactical discussion to an earlier date provides flexibility to perform a more deliberate assessment of how best to present the expert’s testimony. For example, if an analytical methodology is similar to a court-accepted fact pattern from a prior matter that is subject to a protective order, the expert witness would have ample time to review the protective order, confer with counsel, and determine the level of detail that may be disclosed. This level of preparation would not be possible if the first discussion of the topic occurs the day before the deposition.
The early session also offers an opportunity to revisit the scope of the opinion, create clear boundaries regarding the scope of the engagement, and assess any newly developed facts. Generally, the scope of the opinion connects directly to the published report. However, additional materials may be produced after the publication of an expert report, including testimony from other expert witnesses, testimony from fact witnesses, or delayed document productions. Counsel must first decide whether to share the newly developed information with the expert based on the overall context, relevancy and significance to the original opinion or analysis, and other strategic considerations. Assuming counsel shares the newly developed information during the early preparation session, the extra time will be important to fully evaluate the impact on opinions and perhaps consider an addendum to the original report if needed and allowed.
An early session also allows for the opportunity to review the deposition notice or case management order, particularly regarding instructions about materials to produce at or before the deposition. In instances where materials not directly related to the immediate dispute are required to be produced (e.g., prior relevant presentations or scholarly articles), this negates the need for last minute finding, gathering, and production of materials the night before the deposition.
In situations involving economic damages, the expert and counsel may anticipate and discuss hypothetical scenarios that could be advanced by opposing counsel. With the benefit of additional time, the expert has an opportunity to investigate relevancy of the hypothetical scenario given the fact pattern of the case, assess consistency with generally accepted methodologies, evaluate materiality to the opinion, and confer with counsel regarding the merits of quantifying the impact of the anticipated hypothetical. All these steps generally require more time than would be available if discussed on the eve of the deposition.
There are countless other ways that an early defense preparation session provides critical extra time needed to fully prepare and defend an expert witness. While a two-step deposition preparation approach may not be feasible in all situations, implementing this approach reduces the chaos that often immediately precedes an important expert deposition and positions your case for success.
Keywords: mass torts, deposition preparation, expert witness, economic damages, causation