Taking effective expert depositions:
Tactics in the expert deposition
This is the third of 3 video presentations covering the subject of taking effective expert depositions.
In this video, I will briefly cover a handful of very specific tactics to help maximize your effectiveness in the expert deposition.
Let me remind you of four important points that I have covered in the previous presentations:
Number one, don’t fear your lack of substantive knowledge in the expert’s area…
Second… sequencing is important. Don’t give up valuable strategy by asking unimportant questions before you explore important areas of inquiry.
Third… a deposition is a two-way street, and you can disclose some of your strategies by questioning the expert witness. Be sensitive to this fact and try to be discrete about your inquiry into areas where the expert is somewhat weak. Don’t argue with the witness; consider saving your inquiry for trial.
Finally, make the expert argue with himself. I won’t elaborate here… I discussed this in the previous video.
Now, to a few specific tactics that are helpful in examining the expert…..
One…. Don’t give any factual information in your question, or your preface to the next area of questioning… giving unnecessary information helps to educate the expert in areas that he or she might not be aware of:
Here’s an example… sometimes lawyers will politely introduce a new area of questioning with a preface like this: “you’re aware that the company has a cash flow forecast for 2018, correct
Well, the lawyer has just given out a piece of information that the expert might not have known.
Rather than prefacing a question with “you’re aware of the cash flow forecast for 2018..,” the better question to introduce this new subject would be to simply ask: “Is there a cash flow forecast for 2018? Who made it? What does it say? Is it reliable, in your opinion?
Too often the lawyer gives the expert information that educates him or her. Don’t do that.
Two… here’s another tactic: ask for opinions that are outside of the expert’s area of expertise—
For example, ask the question: “Is the conclusion of [some other expert] reasonable, in your opinion?”
Why do this? It’s amazing how often an expert will allow himself to be pushed “off the page” in the deposition, effectively giving an opinion that is completely outside his or her area of expertise. If that happens, you can use the “unknowledgeable opinion” in later cross-examination, showing that the person wasn’t qualified to render an opinion outside his area.
I should mention that, when I am talking to experts about how to give effective depositions, I am always telling them to not get pushed out of their area of expertise. So, you, the deposing lawyer, should try to push the expert out of his or her area. Let them hang themselves. You might be surprised – they’ll sometimes do it for you.
Three… it is well known that experts’ communications with counsel and others are not privileged.
So, ask the expert to name every person with whom he or she has communicated in connection with the particular case. The reason for, and nature of, each of these communications should be explored.
The expert should be asked about every meeting he has had with his client’s attorney. The date, time, place, reason for the meeting and parties in attendance should be inquired about. You should fully inquire about the purpose of each meeting and the results of that meeting. Also, were any documents or reports given to the lawyer at the meeting? If so, where are they?
All discussions by opposing counsel with opposing expert witnesses are discoverable. After a break in the deposition, inquire about the details of any discussions that the expert witness had with his or her client’s attorney. Of course, you’re only going to get to do this one time – effectively.
Four…. Review all notes of meetings that are present in the expert’s file. If notes are not included in the file, ask if notes were taken. Were they destroyed or discarded? Does the expert normally attend meetings without taking notes? I’m incredulous at some experts who say they don’t take notes. Really?? Do they have perfect memories?
I consider the following points to be minor tactics for lawyers in expert depositions:
Five…treat objections as though they are just a formality of the deposition. After the objection, immediately refocus attention on the witness and seek the answer to the question that was just asked.
Six… try to avoid arguments with opposing counsel. Arguments tend to increase the tension in the room and make the witness less inclined to offer valuable information. They also tend to educate the witness about strategies and tactics that might affect the testimony.
Seven… as you conclude your inquiry into each substantive area or “step” of the expert’s analysis, ask the expert if there is anything about the step “That you haven’t told me” – Reasoning?, Assumptions?, Facts?, Considerations?. An experienced expert will respond, “Not that I can presently think of.”
At this point, the lawyer should seek a commitment that if the expert does think of anything about step x between now and the signing of the deposition, the expert will write in the fact that he/she has thought of.
Consider admonishing the witness with a statement like this: “This is the day of your deposition. You are aware, aren’t you, that you have an obligation to provide me with all the support for your opinion.”
Eight…. Inquire if the expert has any other work planned in this matter. Specifically, are there any steps that he or she intends to complete? And importantly, “has the lawyer asked him not to perform any steps?
Nine…. When you are defending the deposition of your client’s expert witness and the deposing attorney has brought the opposing expert witness as a consultant, ask that consulting expert witness to preserve a copy of his/her notes for production at the time of that witness’ deposition. (they are notes; they were taken in the course of the expert’s work; there seems to be no good reason why they should not be preserved and produced.)
Here are some clean-up questions that might be helpful:
Have all your professional opinions or conclusions reached in this case been explored in this deposition?
Is there anything you would like to add so as not to be misunderstood?
How certain / sure are you about your opinions?
If you had an unlimited budget in this case, what additional steps would you perform?
How many other cases have you performed for the lawyer who has retained you in this matter?
How many other cases have you handled for this lawyer’s law firm?
Have you socialized with this lawyer?
Have you removed anything from your file?
Were you asked to remove anything from your file?
Have any written materials been destroyed or discarded?
Have you retained previous drafts of your analysis?
Have you provided any written materials to your client’s lawyer that are not photocopied in your file?
Do you have a computer disk that has a copy of any documents that are not presently in your file?
Have you discussed any weaknesses in your analysis with your client’s lawyer?
I hope these strategies and tactics help you take more effective expert depositions.
