Taking expert depositions

You're a newbie lawyer, starting to feel comfortable with litigation. You may have taken a few fact depositions; maybe defended a few fact depositions. But you've had that partner on the file to take care of the "important" tasks: argue dispositive motions, defend corporate witness depositions, and take lead with the mediation or settlement conference. Despite everyone's best efforts, the case has not settled and you are on your way to trial. Exciting. Before you get there, the day has come when your partner trusts you to take the opposing side's expert's deposition. Yikes! That's a big deal. After all, most cases come down to the battle of the experts. Don't freak out. I'm here to help you through the basics.

Don't Delay - Serve the Deposition Notice

If you are at the point of deposing experts, chances are you are within two months of the trial date. Thus, you don't have a lot of time to sit on your hands. The minute you receive the opposing side's expert designation, make sure to send out a deposition notice with a request for production of documents. You and the other side will work out the actual date, time and location if they don't agree with what you have chosen.

Some of the documents you should ask for: CV, expert file, communications between the expert and counsel, communication between the expert the parties, communication between the expert and third parties, notes, documents relied upon or consulted, documents the expert is aware of that contradicts his or her opinions in this case, copies of publications.

Purpose of the Expert Deposition

Oftentimes, trials revolve around expert opinions. Thus, the expert deposition is important and should not be taken lightly. You will already know who you are deposing, as well as the expert's field or specialty, from the expert designation. If you've worked the case up appropriately, the expert's specialty should not be a surprise.

The goals of an expert deposition should be, at a minimum, to:

1. Find out what the expert's opinions are;

2. Find out the bases for the expert's opinions;

3. Discover what work the expert performed to arrive at the opinions;

4. Obtain copies of the documents that support (and contradict) the expert's opinions;

5. Get the expert to agree to what you know your expert is going to say;

6. Find out what the expert's criticisms are of your expert's opinions; and

7. Find ways to challenge or disqualify the expert

Preparing for the Deposition

Everyone prepares for expert depositions differently. There is no right or wrong way. Here's my suggestion.

Some people prepare full-blown outlines with every question they want to ask written down. Others prepare bullets points of topics they want to inquire about. There are dangers to both. You might miss something important that you needed if you just go with the bullets. You might focus too much on your written questions and not listen to the witness if you go with the full-blown outline of questions. Try both ways and see what works best for you. I typically prepare a hybrid of the two.

Preparation should entail:

Know your case's theme and theory: Hopefully you have developed a theme and theory for your case. Remind yourself of the theme and theory so you can try to fit the expert's testimony into your case.

Review and analyze the facts and documents in the case: Review the file - your reports to your client, discovery, deposition testimony, your notes, etc.

Research the expert: Review the expert's website, read deposition transcripts from other cases, ask other lawyers, read published articles, determine if another court has excluded the expert and the reasons why, and the like. The information you learn may give you ammunition to attack the witness' testimony. Pay particular attention to inconsistencies in the expert's opinions and methodology, as well as inconsistencies with other experts in the field.

Educate yourself on the expert's specialty: You are not trying outsmart an expert at the deposition. You are trying to gather information. That said, try to learn some basic information about the expert's field to give you some comfort and a foundation to know a little about what the expert will be testifying about. It will also help you to identify any special terms used in the expert's field that may come up during the deposition.

Enlist the help of your experts: Contact your experts to gain an understanding of their opinions and work performed and ask them for potential questions and hypotheticals. Maybe even invite your expert to the opposing expert's deposition and they can feed you questions.

Bring with you to the deposition: your file (just in case), your deposition notes, your exhibits (expert designation, deposition notice, etc.), the expert's witness fee.

Taking the Deposition

Now you are ready to take the deposition. The procedural aspects of an expert deposition are the same as any other deposition - swear in the witness, perhaps run through admonitions (or not), ask questions, do the closing stipulation, and adjourn. I know, you are wondering, "But, what questions do I ask?" Experts will tell you a lot of information if you ask the right question and you do so in the proper tone and manner. Here are some basic areas for inquiry:

Expert designation: Go over the expert designation with the expert. Lock the expert into the areas she or he was actually designated to offer opinions. Sometimes, the expert has never seen the designation. Confirm the expert is ready and prepared to offer those opinions today at the deposition.

Document production: Confirm the expert brought his or her entire file; that nothing is missing. Spend time going through the documents the expert produced. Make copies. Have the expert identify what the documents are and which documents were actually relied upon in forming his or her opinions.

Qualifications: Try to find ways to disqualify the expert based on his or her qualifications. Painstakingly go through the expert's CV. Ask follow up questions to the items noted in the CV. Is the CV current? When was it last updated? Is it accurate? Is there anything missing?

For certifications: How did the expert obtain the certification? Is it still current? How many times did the expert take the test to earn the certificate?

For professional organizations: How long has the expert been a member? What is required for membership - a test, just pay fees? What is the purpose of the organization? Why did the expert become a member? Has the expert held any leadership roles within the organization? How active is the expert in the organization?

For articles, presentations, seminars: Has the expert published or presented on a topic that is specific to the issue at hand in your case?

For education: What about the expert's education makes him or her qualified to offer opinions in the issue in your case?

For work experience: What about the expert's work experience makes him or her qualified to offer opinions in the issue in your case? Has the expert actually performed work on the topic that is specific to the issue at hand in your case?

Expert work and retention: Try to obtain some ammunition for trial on the expert's bias. For expert work generally: How long has the expert been testifying in litigation matters? Has she or he ever been trained on how to testify as an expert in front of a jury? How many times has the expert been retained on behalf of a plaintiff or defendant? How many times has the expert been retained in cases with opposing counsel? Has the expert ever been disqualified as an expert from testifying at trial? What percentage of income is derived from expert work? Does the expert handle some cases on a lien? Has she or he ever been sued for expert-related services? How many times has the expert been deposed? Testified in Court? How many cases has the expert offered opinions similar to the opinions being offered in your case?

For your case: When was the expert first retained - before case started or two weeks before his or her expert deposition? What was initial assignment? How much time has the expert spent on the case? What are the experts' fees? What is the substance of conversations between the expert and opposing counsel?

Work performed: Did the expert do enough work to form his or her opinions? Has the expert performed all the work she or he believes is necessary to arrive at his or her opinions? Have the expert list the work performed in the case and then go through each item on the list. Has the expert even spoken with the plaintiff or defendant?

Have the expert identify the documents she or he relied upon and then go through the documents. Where did the expert obtain the documents? What about the documents is significant for his or her opinions.

Opinions and basis: Lock the expert in on his or her opinions. Have the expert list the opinions she or he intends to offer at the time of trial then go through each opinion and find out the reason for the opinion, whether the opinion is based on facts or assumptions. What methodology did the expert use to arrive at the opinion? Would the opinion change if the assumptions were changed? Are there any documents to support the opinion? Go through some hypotheticals. Is the expert aware of any facts or documents that would contradict his or her opinions? Are there any opinions or conclusions that the expert has reached, but will not be offering?

Close out opinions: Confirm that the expert does not intend to perform any additional work. Confirm that the expert has told you all of the opinions she orhe intends to offer at trial. Confirm that the expert has told you the all of the bases for his or her opinions.

Trial exhibits: Finally, what exhibits does the expert intend to use at trial?