June 21, 2017 Articles

How, When, and When Not to Use Pattern Questions in Expert Examinations

The ready availability of this resource is a trap for the unwary

by Robert H. Foster

While there is some professional debate about the usefulness of expert witness depositions in litigation practice, most practitioners encountered by the author support the practice. (See "Should Expert Witnesses Be Deposed?," 45 Colo. Law. (July 2016). Also note that discovery of expert witnesses is generally forbidden in state court in Oregon. Stevens v. Czerniak, 84 P.3d 140, 146 (Or. 2004).) Despite the expense associated with the deposition, which can include the reporter, travel, and the expert's fees (to say nothing of the attorneys' time), the benefits generally outweigh the cost. First, there is the opportunity to limit the scope of the expert's testimony by pinning the expert down. Second, there is the opportunity to identify the weaknesses in the expert's testimony, which can shorten considerably the time and scope of expert testimony at trial. Third, the deposition can form a basis to promote settlement short of trial. Fourth, the deposition can form the basis of a motion for summary judgment. Fifth, the deposition provides a basis to challenge an expert on a motion in limine or at a Daubert hearing on the ground that the requirements of Federal Rule of Evidence 702 are unmet (witness qualified, testimony the product of (a) reliable method, (b) sufficient data, and (c) proper application of the facts to the method). Id.

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