January 27, 2017 Practice Points

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

Despite the expenses, the benefits generally outweigh the cost

by Robert H. Foster

While there is some professional debate about the usefulness of expert witness depositions in litigation practice, most practitioners I have encountered support the practice. 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 her 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 before 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 under Daubert.

Because the cost and the utility of an expert deposition are high, every effort should be made to obtain the greatest possible yield from the experience. Despite this, shortcutting on preparation abounds. One tempting short-cut whose substantive use should be avoided is the use of "pattern" or "sample" questions. The ready availability of this resource is a trap for the unwary. The temptation to be under-prepared in a deposition heightens the risks.

Recall these key points of direct and cross examination of experts: (1) the attorney should understand the basic subject matter of the deponent's or witness' opinions; (2) the attorney should understand and be able to explain the witness' opinion using the language of the witness' field; (3) the attorney should understand (in terms of the field of expertise) the weaknesses of the proffered opinions; (4) the attorney should use her expert and consultants in preparing questions for the session and prepare the actual questions herself and review them with her consultants and expert; and (5) the attorney should have very case-specific goals for the results of the session in mind at its outset. Used as anything more than a generalized checklist, pattern questions help achieve none of these requirements.

It should be noted at the outset that for some attorneys embarking on their careers in working with experts, just a set of questions containing the familiar foundational patter and magic question wording can be comforting ("Doctor, are you presently employed? How? What educational path did you follow after high school to get there? Etc.) But for the substance of the questions, where every word counts, the attorney must formulate her own.

The attorney should understand the general subject matter of the witness' opinions. Effective examination and cross-examination of experts requires as thorough an understanding of the subject matter as preparation allows. Without this understanding, the attorney cannot be meaningfully prepared to take the deposition. Pattern questions are of no use in meeting this goal.

The attorney should understand and be able to explain the witness' opinion using the language of the witness' field. Without a thorough understanding of the specifics of the expert's report, propounding meaningful original and follow-up questions, tailored to the specifics of the witness' experience and her report, is challenging. Pattern questions do not advance this goal significantly. It is not likely that a set of pattern questions will educate the attorney in this regard.

The attorney should understand the weaknesses of the proffered opinion before the deposition. This goal is not likely to be met through the review and use of pattern questions.

The attorney should commence the deposition with a set of concise, precise, written questions specifically tailored to the witness' specialty and report. Almost no set of pattern questions can meet this requirement. A set of pattern questions will help fill the time allotted for the deposition. Pattern questions may give the illusion that the attorney is asking useful questions. But once one gets past general things like background, documents reviewed, generalized inquiry into bias, and the like, the utility of pattern questions all but disappears.

The attorney should approach the preparation of deposition questions with case-specific goals in mind. Is the idea to promote settlement? To convince the opposition that the attorney is knowledgeable and competent? To generate answers showing that the expert's method is unreliable? To show that the expert relied on an inadequate data set? Pattern questions will not assist here. They will demonstrate that the attorney is not prepared and signal that the attorney will not be prepared at trial. They will likely lack the specificity to demonstrate that the requirements of Rule 702—qualifications, data, method, and proper application—are unmet. They will most likely reflect poorly on the attorney and her professionalism.

With all this said, the pattern questions have some, albeit limited utility. For the first time deposition-taker, they provide some sense of the flow of a deposition. They can provide a checklist of subject matter areas on which to inquire. They can provide a sense of the patter – the formulation of questions—that attorneys use in depositions. However, in my experience these same benefits can be achieved by reviewing prior deposition questions and answers, and updating one's outlines for effective future use.

In sum, pattern questions have some utility as checklists. They are no substitute for proper preparation and do not provide the necessary background for effective preparation to take the deposition of an opposing expert. The risks of misuse of pattern questions, self-delusion regarding preparation and potentially communicating an unprofessional approach, militate in favor of extreme caution in their use.

Robert H. Foster is a client advisor, trial attorney, and founder of Robert H. Foster, LLC, in Estes Park, Colorado.


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