This is the second of 3 video presentations covering the subject of taking effective expert depositions.
In this video, I will briefly cover 8 tactics and strategies during the expert deposition to maximize your effectiveness while not weakening your position in the litigation.
One… immediately before the deposition, recognize that you have a fairly narrow window to gain a psychological advantage over the experienced expert witness….
Unfortunately, many lawyers miss this strategic opportunity…. And I think this is a critical point…
Depending on the experience of the expert, I usually suggest being very brief with the typical admonitions at the beginning of the deposition.
Why…?? An experienced expert has been through these admonitions scores of times… and there is little value to wasting initial deposition time on them.
In the 300 trials I’ve testified in, I have never been read an admonition from my deposition, leading me to conclude they are of no value in an experienced expert’s deposition. Spending time on them simply allows the expert to relax in the deposition room and size up the deposing attorney, while not facing any pressure of difficult questioning.
If the expert has significant deposition experience, you should simply establish that fact, and establish that the expert is thoroughly familiar with the deposition procedure.
You should then directly proceed into the substance of the expert’s analysis, which is where I think you should begin.
Two… let me also mention the typical inquiry into the expert’s background, education and experience.
If this inquiry is even necessary, it shouldn’t be made at the beginning of the deposition…. Why…??
It is a mindless exercise for the expert, and you are wasting valuable, early deposition time in this area.
Second, if you, the opposing counsel, anticipate that the deposition might be used at trial in lieu of live testimony, why should you qualify the opposing expert witness?
Use the initial deposition time to immediately put the expert on the hot seat to list the expert opinions that he or she will be giving in the deposition
Of course, if there is a concern about the expert’s true qualifications to render the opinions in question, the background, education and experience needs to be examined. But again, is it necessary to do this at the beginning of the deposition? Think about this, at least.
Three… turning to your attitude and demeanor in the deposition…. I certainly understand the benefits of using a more aggressive demeanor in a deposition depending on many different factors….
A less-experienced witness may be somewhat intimidated by an aggressive approach, and there may be a benefit to that approach in that situation, but….
With an experienced expert, a cool, calm and collected approach is probably more effective. The chance is that the “nice guy” will get more information than the obnoxious antagonist.
That’s my experience anyway. I’m human… if a person is professional to me, I’ll respond the same way. If the deposing attorney is obnoxious, I will shut down and he or she will get much less information from me. There’s no absolute rule here… just strategies for lawyers to consider.
Four… next subject… administrative. Near the outset of the deposition – but not right at the beginning, because I think you should ask for opinions first – you should cover the following areas.
Review the deposition subpoena with the witness and ask the witness to confirm that he or she has brought everything that was requested to the deposition. If he didn’t bring something, why not? Was he told not to? Was he just ignoring the subpoena? Put a little gentle pressure on the witness.
Ask the witness to describe everything in the file. I think this is a great question. (why? You sit back and do nothing while the expert works. You might be surprised to find some important document buried in the file… or find out that the expert doesn’t even know what’s in the file.)
Next point: ask the expert what documents were requested for the case. What documents were provided? What requested documents were omitted?
And, ask the expert if anything was removed from the file? And, was he asked to remove anything from the file? This is a fertile area of inquiry.
Inquire about billing to date. How much time has the expert spent on this case? How much time has been spent by the expert’s employees? It’s sometimes interesting to learn that the expert has spend about 5% or 10% of the total time on the case and junior staff people have done the bulk of the work.)
Five… turning to the substance of expert’s analysis:
The deposing attorney should first identify each step of logic taken by the expert in developing his/her conclusion.
An example of a leading question in this area would be…: “can you please give me a broad overview of the steps you have undertaken in your analysis?” or “the steps you have undertaken to arrive at your opinion #1, or #2, or #3?”
You can seek the answer to this question in any way the expert will answer you…. In chronological order of performing the steps; in order of importance, or any way the expert will provide the steps. This is what I meant when I said that you create the blank outline and make the expert fill it in.
Six… then, I suggest adopting a methodical approach…. Once the expert’s analysis is reduced to five or six major steps of logic, each step should be examined methodically….
With respect to each major step, the following inquiry should be made:
Why is this particular step necessary?
Could the step have been eliminated?
Has the expert performed this type of analysis in the past without including this step?
What was the specific outcome of this particular step?
On what facts is the outcome based?
On what observations is the outcome based?
On what assumptions is the outcome based?
On what judgments is the outcome based?
Next question: generally, what other outcomes are possible for this step in an analysis?
What facts would cause a different (lower, higher, stronger, weaker, etc.) outcome at this step of the analysis?
If expert opines to some inadequacy, what in his or her opinion would constitute adequacy?
If expert opines to some failure, what in his or her opinion would constitute success?
What is the range of reasonable outcomes, if a range can be quantified?
If lost profits are $50,000; what is a reasonable range?? $40,000 to $60,000?? Zero to $10,000,000??
Seven… make the expert argue with himself/herself.
This is a very effective technique….
Get the expert to give you hypothetical assumptions that would change the outcome of a particular step.
Ask what facts of this case might support a higher outcome or a lower outcome? A similar outcome? A different outcome? Try to force the expert to argue the strengths and weaknesses of his or her conclusion.
Eight… this is important:…. Follow through on equivocal answers.
If the answer is: x is generally true. Then the question is: when would it not be true? Or not generally true?
If the answer is: true, based on what I know now. Then the follow up question is: what else would you need to know to make it unequivocal?
Follow through on highly technical or rambling answers.
Don’t be intimidated by your perceived lack of knowledge!!
The last point I’m going to make in this brief video is critical:
Nine… the most effective thing in trial is a short, crisp answer that serves your position. You can’t effectively impeach an expert with a long, rambling answer. If the expert gives a long answer to a question, try to narrow the question down to a short phrase, or narrow point, and seek agreement (or disagreement) with the narrow point. This type of question and answer is the most effective for use at trial.
Don’t let the expert intimidate you with long-winded, bloviating answers. They won’t help you in trial. You need concise answers to precise questions. Your job is to narrow the questions to precise ones, and force the expert to answer concisely.
In the next video on this subject, I will cover some more specific tactics for the lawyer to use to take the most effective expert deposition for the benefit of your clients.