Examining Expert Witnesses: Deposition and Trial Considerations

By Patrick Stockalper

As Thanksgiving approaches, I thought the appropriate thing might be to write about giving thanks for all of the blessings and beautiful people in my life. However, I am going to avoid conventional wisdom and write about something else that is obviously less important in life. You see, for some reason, I have my mind focused on experts. Last month, I wrote a little piece on retaining, locating, managing, and getting the most of your expert. This month, I turn my attention to the bad guy, the expert retained by your opposing counsel. The following discussion focuses on some key considerations when it comes time to depose the opposing expert and examine that expert at trial.

Preparing For The Expert Deposition

When it comes time to depose the opposing expert, whatever you do, don’t wing it. It is imperative that you know your case cold prior to deposing the opposing expert which includes knowing the facts, knowing your case theme and story, and knowing the evidence and how you intend to prove your case at trial. As experts focus on the technical, make sure you do your own research on the technical issues of your case so that you understand them well before you depose the opposing expert.

When it comes time to depose the opposing expert, you should already know the opinions of your expert and should use your expert as a resource in determining areas of inquiry, specific questions, or hypotheticals which you might choose to pose at the time of the opposing expert’s deposition. Moreover, consider speaking with your own client on areas of inquiry, specific questions, or hypotheticals which might be appropriate in deposing the opposing expert.

As part of your preparation for the opposing expert’s deposition, make sure that you have an appropriate notice which identifies the expert’s file, including documentation, records, correspondence, and e-mails. You also want to make sure that you ask for everything the expert has reviewed (i.e. this may include internet research which might not ordinarily be included in the expert’s “file”).

Reining In The Loose Expert At Deposition

We all know that there are experts out there who will say anything. To minimize the likelihood of shady or ridiculous opinions, consider having your client present at the expert deposition. As a medical malpractice defense lawyer, I find it very effective when I have my client present at the deposition of the opposing expert who is testifying as to why my client was negligent. Although my client’s presence has never resulted in my experience with the opposing expert recanting and stating that he believed my client complied with the standard of care, it has from time to time resulted in the opposing expert being a bit more judicious and reasonable in enumerating his list of criticisms. Let’s face it, it is a lot easier for an opposing expert to sit in a room without your client looking him in the eye, which is something the expert cannot avoid when your client is directly across the table.

Although it is well recognized that only counsel and parties have the absolute right to attend a deposition, consider having your expert sit through the deposition of the opposing expert. If you think the other side might preclude the deposition from going forward upon sight of your expert, consider seeking the court’s assistance prior to the opposing expert’s deposition and make a good cause showing why your expert should be present. In California , Code of Civil Procedure Section 2025.420 places the burden on the opposing party to show that your expert’s presence will cause unwarranted annoyance, embarrassment, oppression or undue burden or expense. In the normal course, there is no reason to believe that an expert’s presence will cause such annoyance, and absent such a showing, a protective order must be denied. As with your client’s presence, your expert’s presence at the deposition might not only result in the preclusion of questionable or downright ridiculous opinions, but that presence may also assist you with appropriate follow-up and strategy during the deposition that you might otherwise fail to appreciate.

Aside from having your client present, consider videotaping the opposing expert if you want to rein him in a bit and prevent him from being overreaching in his opinions. You might want to remind the expert during the admonition process that the videotape can and will be used at the time of trial.

The Things You Must Learn At The Deposition

When you depose the opposing expert, your obvious focus is to find out what he or she will say at trial. However, if this is your sole mindset, you may take a mediocre deposition and do little to set up an effective cross examination at trial. When you depose the opposing expert, you need to question the expert in such a way that you are fully able to identify the expert’s qualifications, the presence of any potential bias, and the foundation for the opinions the expert provides.

In ascertaining the opposing expert’s qualifications, review the expert’s curriculum vitae, which will be produced at the time of deposition in response to your document request asking for the curriculum vitae. Don’t just attach the curriculum vitae as an exhibit to the deposition, but take the time during the deposition to review the curriculum vitae. It often provides a wealth of information such as identifying publications and presentations by the expert witness. I will typically ask the expert whether any of the publications or presentations that are listed on his or her curriculum vitae involve any of the issues for which the expert is testifying, as there may be something in a previous deposition or article written by the expert which contradicts his deposition testimony. Remember that your opposing expert’s extensive curriculum vitae does not mean he is inherently qualified to act as an expert. For instance, I recently had a medical malpractice case involving a particular surgical procedure which the opposing expert and chief of surgery at a reputable institution had never performed; obviously a potential vulnerability for this expert at the time of trial.

Aside from having my antenna up for qualification vulnerabilities, it is crucial to uncover biases on the part of the opposing expert. For example, does the expert know the opposing party? Is the expert social acquaintances with the opposing counsel? How often does the expert testify for the plaintiff (rather than the defense)? How often has the expert been retained by your opposing counsel? How much of the expert’s professional time involves expert work as opposed to non-expert work? How much has the expert been paid? Is the expert on a lien? Does the expert advertise for business and, if so, what are the various sources of advertising used by that expert? These are all areas of inquiry that are the traditional staple for uncovering potential bias which you want to capitalize on at the time of trial.

You obviously need to find out the expert’s opinions but you also need to find out the basis for the opinions. Simply put, you want to find out if the expert has good reasons for his opinions. Do the opinions make sense? Are the opinions supported by whatever documentation the expert has reviewed? Is there documentation reviewed by the expert that actually is inconsistent with the expert’s opinions? Are there relevant documents which the expert has never reviewed? Make sure to ask the opposing expert whether there are any documents that he wanted to review (but were never provided) as well as whether he believes he has reviewed all relevant documents in order to formulate his opinions.

Finally, aside from learning what the expert will say at trial and identifying any potential areas of cross examination including qualifications, bias, and opinion reliability, the expert deposition also serves to give you a sense of how well the expert will come across at the time of trial. Is the expert convincing? Is the expert arrogant? Is the expert unprepared? Is the expert a windbag? These are impressions that are helpful in evaluating whether the case should eventually be tried and also crucial in cultivating and refining your cross examination strategy at the time of trial.

How You Should Act

When it comes to deposition, remember that the deposition is generally not the time to perform your cross examination. The expert will typically have greater knowledge than you of the subject matter on which the expert is testifying. Experts tend to be seasoned and sophisticated witnesses so a knock out punch at the time of deposition is highly unlikely. Rather, your focus at the time of deposition is to learn the opinions and their foundation, and to identify potential vulnerabilities for the expert such as his or her qualifications, bias issues, and foundational concerns for the opinions. You need to learn where the vulnerabilities may lie, whether they relate to qualifications, bias, or the opinions themselves and the basis for those opinions. As such, ask good questions, be thorough, and let the expert pontificate. Once you learn where those vulnerabilities may lie through effective preparation, questions, and listening, you can then cultivate and refine these vulnerabilities between the date of the expert’s deposition and the next time you see that expert in the witness box. Remember that your expert will have the opportunity to review the opposing expert’s deposition, which could prove useful in further cultivating and refining your cross examination of the opposing expert at trial. You will also hopefully have the opportunity to obtain depositions given by the expert in other cases involving similar issues which could serve to provide contradictory testimony by the expert.

Although I do not recommend going on the attack mode in every expert deposition, there are expert depositions where examining the expert as if you were at trial is necessary. For example, if the case is a case that you will want to settle, you may wish to cross examine the expert in deposition to enhance your settlement position following the expert deposition. Moreover, there are some experts who are simply weak and you can from time to time destroy the opposing party’s case with a tough deposition. However, these instances are the exception rather than the norm.

Cross examination Of The Opposing Expert At Trial

On cross examination at trial, remember that your road map of attack is divided into three areas including qualifications, bias, and validity of opinions (i.e. foundational issues, prior inconsistent testimony, etc.). Once you have your battle plan, ask leading questions. Don’t ask open ended questions or you are going to get crushed. If the witness fails to answer your question, don’t hesitate to firmly and politely cut off the witness where appropriate and reiterate the question and ask him to answer it. If the witness continues to be evasive or unresponsive, ask the judge to instruct the witness to answer the question. If the witness is being evasive or ignoring your question, this will be readily apparent to the jury.

Remember, with cross examination, you will rarely have the knockout punch. You can go for the knockout on cross examination, but in doing so, you may only become frustrated and distracted, while at the same time reinforcing the points of the expert’s testimony which hurt your case. The key in cross examination is to neutralize (or better yet, damage) the impact of any direct examination testimony of that witness. Remember, that cross examination of the opposing expert is just one of the many parts of the trial.

When questioning, make sure you do not allow the opposing expert to rehash previously damaging testimony. The key to avoiding this horror is to ask leading questions, keep it simple and concise, don’t argue, maintain your cool, impeach with only good impeachment, focus on only a few key points of the testimony, never ask a question in which you are unaware of the answer, and never ask why. These are long accepted maxims of cross examination, but all trial lawyers, regardless of their experience, must always remember these maxims to ensure effective cross examination.

Conclusion

Now that I have completed this article, I no longer need to obsess about experts. Rather, I can turn my attention to something more pleasant such as Thanksgiving. As such, I would like to express a Happy Thanksgiving to all of our LCA fellows and wish you a happy holiday season and great year in 2010.

Contact Patrick Stockalper: pstockalper@rmkws.com