| by Brian L. Burchett, Esq.
Taking expert depositions can be stressful, intimidating, and frustrating. But it doesn’t have to be. With the right planning and preparation, you can consistently accomplish your goals. So, what do you do?
First, determine your goals for the deposition. Are you looking for holes in the expert’s opinions? Are you trying to get helpful testimony? Are you probing for evidence of bias or inadequate qualifications? Do you want to try to exclude the expert from testifying to the opinions at all? All of the above? Well, not really. It does not make a lot of sense to establish that an opposing expert who can give helpful testimony is biased and unqualified.
If the focus is on the expert’s opinions, rather than qualifications, bias, etc., you need to become a quasi-expert yourself. Learn everything you can about the particular subject matter the expert is talking about, whether it is roofing or cardiac surgery. A good place to start is your own expert. Get a short list of resources to read to learn the basics of the subject. Check out the internet, but be careful. There is a lot of unreliable information out there. Read what the opposing expert has written about it. The expert’s list of publications can be a treasure trove of helpful sources.
After you have a bit of handle on the material, talk to your expert about the areas of vulnerability. What would your expert ask if he or she were asking the questions?
In your zeal to leave the opposing expert a quivering bowl of Jello, don’t overlook getting helpful testimony. It is a rare case where there are not areas on which the experts agree, or where disagreements are premised on assumptions you expect to disprove. Get as much supportive testimony as you can. Press the expert witness for his/her opinion, assuming the facts as you expect to prove them. Don’t give up on this. You’re entitled to ask hypothetical questions and you, as the questioner, can pick any set of facts you chose. Accept nothing less than an unequivocal answer or a clear refusal by the expert to answer. The more the opposing expert agrees with your expert in trial, the more credible your expert appears.
If the goal is exclusion of opinions through a Daubert – Sargon motion, focus on the basis for the expert’s opinion. What is the evidentiary basis and the theoretical, scientific, medical, or technical basis for the opinion? Is that generally accepted in the field? Who besides the expert says that it is? Is this how the expert does this in his/her normal work?
Where the focus is the expert’s qualifications, the expert’s CV is central. What training relates to the subject opinions? How many of these professional associations, boards, certifications cover this area? In which jobs did the expert do this? Which presentations and publications on the list deal with this?
On the issue of bias, two things are particularly helpful: a federal Rule 26 expert disclosure case list and prior depositions by the witness. The Rule 26 disclosure is more accurate than the frequent experts’ typical dubious 50/50 plaintiffs vs. defendants answer. Prior depositions also can tell you whether the expert is understating the amount of expert work done. I recall one expert who’d been saying he’d given the same number of depositions for 10 years.
There is one more great advantage in getting prior depositions. Sometimes experts take the opposite position when they were hired by the other side in a prior case. In a medical malpractice brain damage case I handled for the victim, a defense neurosurgeon had been a plaintiff’s expert in a prior case. There, he testified the very symptoms at issue in our case were emblematic of that type of brain injury, though he was trying to deny that in our case. I just said, “Doctor, isn’t it true that. . .” and picked up his prior depo and read his testimony to him.
It is unlikely you can learn the subject as well as the expert you’re deposing. But if you do these things to prepare, you go far in evening the playing field.
Brian Burchett has been trying cases for over 30 years. Based in San Diego, he represents victims of medical malpractice. His website address is www.theburchettlawfirm.com. He can be reached at 619.230.8431 or via e-mail at brian@theburchettlawfirm.com.