TAMING THE OPPOSING EXPERT

A CLE PROGRAM PRESENTED BY

PHIL HUNTER

OF

HUNTER & MORTON

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PREPARE FOR THE DEPOSITION

Do computerized research.

Run the expert's name in Westlaw or Lexis.

• Gather his prior relevant testimony. (Deposition banks, letter to 20 or 30 fellow attorneys, Westlaw)
• Determine his relationship with the opponent. (Has he worked for the lawyer, party, insurer).
• Catalogue failures and weakness (Not accepted as expert, untrue testimony, qualification problems)
• Define his "hot button" issues. (Charges too much, advertises for work in journals, any trouble with his prior employment)

Consult your own expert.

• Ask about prior cases where both your expert and this expert have "clashed".
• Ask about whether your expert has research papers, outlines or position papers presented by the opposition expert at professional seminars.
• Have your expert probe for vulnerability in the opposition report.
• Sift through your expert's "war stories" for additional ammunition. (Has he heard about failures or weaknesses displayed by the other expert in prior cases).

Aim advance discovery at the expert.

• Request production of reports and records. (Many courts require exchange of reports).
• Send general interrogatories (not specific enough to reveal your theory or weaknesses).
• Send the expert a subpoena duces tecum. (Get it served correctly. Do not depend on serving counsel. Use a court reporter or attorney in foreign jurisdictions).
• Request the expert's supplemental reports.
• Request production of everything the opposition has provided the expert.
  • Request each book, periodical, standard, or other authoritative source on which the expert relied.
  • Request his calendar or other like document for one year before and after your deposition.
  • Request phone message slips and file folders. (Often experts, particularly physicians, write notes on the file folder).

Prepare your examination.

• Prepare a written outline with insertion of critical dates, times distances, figures, and technical words so you can maintain your pace in questioning. Do not fumble for details.
• Draft your critical questions in verbatim form, and insert them in your outline.
• Do not prepare a complete list of verbatim questions. (This causes you not to listen to answers, and limits flexibility).
• Review printed "code of ethics" documents for the expert's field of specialty.
• If you are handling a products liability case, study design failure mode analysis in the standard freshman engineering text. Use college texts for basic methods and standards.
• Consider using a lap top computer with collapsible outlines. I use the outline feature in a word processing program.
  

Decide whether to video tape the deposition.

Consider these factors:

• Does the product or subject of the suit fit conveniently into the deposition room?
• Are x-rays, anatomical models, etc., important to the case?
• Does the witness "act up", so that showing the video might display the deponent's undesirable personality traits?

 

CONDUCT THE DEPOSITION YOUR WAY

• Review the documents produce pursuant to your subpoena duces tecum. Be thorough. Take your time.
• Bypass the expert's qualifications and go straight and go straight to a winnable, important concession.
• Skip around. Do not proceed in the order the expert dictates in this report. Avoid chronological ordering of questions. Be unpredictable.
• Break big complex issues into small "building block" questions.
• Force the expert to either malign your expert and his opinions, or to concede your expert's qualifications and the reasonableness of his opinions.
  • Avoid asking the opposition expert to agree with your expert's ultimate conclusion. Instead, break your expert's reasoning process down into its smallest parts and seek concessions from the opposition, "one at a time", on these "building blocks".
  • Ask the opposition expert if he has testified opposite your expert in the past, and, if so, if your expert's opinion has prevailed.
• Show the expert your demonstrative exhibits. Invite his critique and force concessions on the correctness of the exhibits.
• List for confirmation by the opposition expert each assumption underlying his opinion. Ask him to add any assumption you have failed to list. Consider purposely omitting one of his assumptions from your recitation to test his sincerity. For example:
  • Do you have all the information you need to render a valid opinion?
  • Have you requested additional information?
  • Have you requested any information you have not received?
  • Have you added anything to your report after discussing its substance with defense counsel?
  • Did you provide opposing counsel a rough draft of your report before putting it in final form?

Set up the expert for impeachment at trial.

• If you will impeach from journal articles, textbooks or other authoritative sources, have the expert concede that your source is authoritative. Do not give him enough detail to anticipate your precise impeachment source, and always throw in some sources you do not intend to use. Mention the author, articles, texts, etc., to get his assessment.
• Bring photocopies of your journal articles or other impeaching materials to the deposition. These may be use in "carrot-stick" fashion to contain the expert.
• If you will impeach for prior inconsistent statements, other than sworn testimony, consider showing the expert your impeaching document for his identification near the end of the deposition.

Keep up a steady, quick pace in your questioning. Do not let the expert digress. Keep your questions short and simple.

Avoid elaborate hypothets.

• They do not play well as impeachment vehicles in jury trials.
• They allow the opposition expert too much room for qualifications and intentional misinterpretation.
• They reveal your theories of the case and invite the opposition expert to develop counter-arguments for trial.

Video tape the deposition if:

• You will show the expert the product or thing in question during the deposition.
• You will ask the expert to refer to demonstrative exhibits.
• The expert is a novice and is not accustomed to video taping.

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TAKE "CORPORATE DEPOSITION" IN ADVANCE OF YOUR EXPERT DISCOVERY (CCP Art. 1443; FRCP 30(B)(6))

WHAT ORGANIZATIONS MAY BE DEPOSED?

• Public or private corporation;
• Partnership or association;
• Governmental agency.

HOW DO YOU NOTICE A CORPORATE DEPOSITION?

• List with reasonable particularity the matters on which the examination is requested.
  • Keep each item short and simple.
  • Be specific when possible.
  • Refer to specific pleading allegations or previous discovery answers by number, and attach relevant documents to the notice.
  • Include one "catch-all" category.
  • Use the free U.S. Governmeble, important concession.
  • Skip around. Do not proceed in the order the expert dictates in this report. Avoid chronological ordering of questions. Be unpredictable.
  • Break big complex issues into small "building block" questions.
  • Force the expert to either malign your expert and his opinions, or to concede your expert's qualifications and the reasonableness of his opinions.
    • Avoid asking the opposition expert to agree with your expert's ultimate conclusion. ICE.
      • At the outset, ask the deponent to identify which officer, director, managing agent, or other person who will respond to each item enumerated in your notice.
      • Announce your movement from one enumerated item to another, not necessarily in numeric order.
      • Recite for the record any deficiency on the part of the designated representatives in providing responses concerning the enumerated categories for use in your subsequent motions for assessment of costs and attorney fees.

COVER PROFESSIONAL QUALIFICATIONS.

• Timing - Cover the qualifications at the end. Experts get comfortable and confident if you let them "beat their own drum" at the beginning of the deposition.
• Standing in professional societies
  • Ask if membership is active.
  • Ask if expert has ever been suspended or asked to resign.
  • Ask if expert has ever held or run for elective office in the professional organization.
• Previous qualifications as expert:
  • Has expert ever been denied "expert status" in any court. When, where, why?
  • Has expert ever faced contempt or other sanctions?