You know how important it is to nail down the opposing party’s experts at their depositions. You want to lock them in to their opinions and to identify all the supporting documents upon which they relied. To do this well, you need to spend sufficient time in preparation so you can elicit all of the necessary information and avoid any surprises at trial. Here are a few ways to do that:
Be overly prepared
- Thoroughly read and compare your expert’s report with the report of the opposition's expert. Note the differences and similarities. Review other depositions the same expert has given on similar issues. Identify any inconsistencies in previous testimony and the current report.
- Educate yourself on the issues. You must be completely knowledgeable of the subject matter. For example, if the witness is a medical expert, you need to know all you can about the medical condition at issue, the standard of care in community, the proper diagnostic tests and treatment as well as being familiar with relevant publications. You should strive to know more than the expert so you can identify times when the expert is bluffing or trying to be evasive.
- Make a list of questions that need to be asked. You don't want to kick yourself for not asking something that could have a big impact on your case.
- Review the expert’s curriculum vitae. Be sure it's current. Verify that the expert’s licenses are current. If publications are listed, review ones that relate to the issues in your case and see if you find any discrepancies.
At the deposition
- Don't t overlook follow-up questions. Although you want to have your list of questions and be sure they're all answered before you conclude the deposition, watch out for the trap of sticking so closely to your pre-formed list that you fail to follow-up on an ambiguous or rambling answer. Listen carefully and don't be in a rush to get to your next question. You may fail to get the one answer that makes or breaks your case.
- Lock the expert into each opinion he or she has and the basis upon which the opinion was formed. Ask what data was relied upon, what literature was consulted, what other testimony was looked at and what documents were reviewed.
- Before concluding, have experts admit that they have no opinions other than the ones they have shared with you at the deposition and have provided you all the resources upon which they relied.
- If there are some documents or pieces of literature they reviewed but did not rely on, have them identify specifically what they disregarded and explain why they made that choice.
- If an opinion is a subjective one, not based on authority, get the expert to admit that.
- Finally, question experts about their C.V. Many overstate their qualifications. Pin them down on their credentials and what tasks were required for certain certifications.
- Many lawyers ask C.V. questions at the start of the deposition. Some seasoned attorneys suggest saving these questions to the end. Experts are surprised when lawyers start off with questions about key issues to the case and save the C.V. questions for the end.
Believe it or not, attorneys are known for hiring expert witnesses without adequately vetting them. Your skilled questioning at the deposition can do serious damage to the opposition’s case and provide you the fodder you need for a summary judgment motion or for successful impeachment of the witness at trial.