Transcript of "Preparing For The Deposition Of The Opposing Expert"
Little Rock, Arkansas
December 5, 2008
Preparing for the Deposition
of the Opposing Expert Witness
Determining Your Goals For The Deposition
Careful Examination About Background
Establishing Credentials And Credibility-
Gathering Information For Daubert Challenges
Recall And Conversations
Going After Admissions During Deposition
Exhibits During Deposition
Making And Dealing With Objections
Specialized Challenges For Deposing Scientific,
Technical, Or Other Specialized Experts
Preparing for the Deposition of the
Opposing Expert Witness
Determining your goals for the
What is this expert’s role in this case?
Why did the opposing counsel pick this
What does this expert add to the opposing
Narrow down the expert’s anticipated role.
Burden of Proof issues
Is the opposing expert testifying about a
topic on which your opponent has the
burden of proof?
Is the opposing expert primarily going to
be challenging what your expert is
If so, the real goal will be to figure out what
criticisms there are.
Understanding the issues
This can be difficult, and requires a lot of
We usually don’t have the educational
We have to rely on our experts.
Still, it’s important to read materials.
Internet sites (increasingly important)
Research on technical issues
Many sciences aren’t as easy to
research as law is. There’s frequently
no Westlaw or Lexis
Your expert will have to help, of course
But there’s no reason not to try it on your
own as well.
Some resources on the Internet are very
Google scholar usually just leads you to
But occasionally there will be multiple
versions of the article. One of those
versions may be a copy that one of the
authors has posted on his or her website.
Sometimes the article is posted on the
In one case an expert said that a phrase used
by another expert wasn’t really a term of art in
the field, more or less accusing the other
expert of making the term up.
The term wasn’t actually in the medical
I searched the term in Google scholar and
found enough uses of the term in context to
challenge that characterization.
Google Books has been a matter of
controversy because of allegations that it
It allows you to see various parts of
There is often enough to tell you if you
want to order the book.
With enough advance time, interlibrary
loan is available.
useful. It is an
to help college
papers, but every
once in a while it
useful to lawyers
Mostly newspapers and magazines, but some
journals that can be useful
Primarily publications. I have occasionally found
background information there that is useful.
Scientific American Digital
Mostly useful for understanding issues. Not really a
reference to use for challenging expert opinions.
But if you happen to find something on point, it’s
Modern Scientific Evidence
Modern Scientific Evidence: The Law
and Science of Expert Testimony, David
L Faigman, Michael J. Saks, Joseph
Sanders, Edward K Cheng (Thompson
If they happen to cover your topic, there
will be references to scientific as well as
legal materials on it.
There are excerpts from a brief on page
89 of your materials.
I apologize for the typographical problem.
Mother goes to the hospital. There is a
delay in delivery. Child is born with
severe cerebral palsy.
Mother has smoked marijuana while the
child is in utero.
The question was whether exposure to
marijuana could have caused cerebral
We moved in limine to exclude evidence
of marijuana use, as there was no
evidence of causation.
That required reading, studying, and
presenting the judge with literature.
In preparing for the deposition, it is important
to have copies of the relevant scientific studies
available to confront the experts if necessary.
It can also be useful to have copies of books.
Today with Amazon.com and similar sources,
you can find used copies of books.
In an appropriate case, spring for a new copy.
Get background information
C.V. is a good starting point.
Some areas of expertise are more
traditional than others.
Orthopedic surgeon. The history is going to
Demonstrations, this afternoon
Life care planner
Publications on CV
Read the publications if available,
especially if they have something to do
with the topic at hand
That has gotten easier with the Internet.
Find out about teaching
David Tirella http://
Article about selecting expert witnesses
recommends four “p’s”
Of course he left out the fifth “p” about such an
Every expert is going to have to be a
In deposition, however, the expert’s
demeanor is going to be completely
Try to figure out how the expert will
explain his position to the jury.
Find out about the expert’s day job.
How much time does the expert spend
as an expert?
How much time does the expert spend
as an actual practitioner
This will vary somewhat based on the
nature of the expertise.
Forensic experts are frequently full time
Ever been a party to a lawsuit
Plaintiff or defendant
Explore what happened
Who represented the expert?
Did this have anything to do with the
expert becoming an expert witness?
You can’t ask it like that. You have to be
Best if you can get them before the
Still useful for trial. Find out what you
Federal expert reports are great sources
prepared and signed by the witness
if the witness is one retained or specially
employed to provide expert testimony in the
case or one whose duties as the party's
employee regularly involve giving expert
Expert report, continued
The report must contain
the data or other information considered by the
witness in forming them;
any exhibits that will be used to summarize or
the witness's qualifications, including a list of all
publications authored in the
previous 10 years;
a complete statement of all opinions the witness
will express and the basis and reasons for them;
Expert report, continued
The report must contain, continued
a list of all other cases in which, during the
previous 4 years, the witness testified as an
expert at trial or by deposition; and
a statement of the compensation to be paid for
the study and testimony in the case.
Previous experience as an expert
Plaintiff or defense expert?
Member of organizations associated with
one side or the other?
Self imposed restrictions on testimony?
Lawyers the expert has worked with in
Involvement in this case
How did the expert get his information about the case?
Did it all come from the lawyer?
Did the lawyer recommend any other sources?
Did the expert do any independent research?
Did the lawyer ever talk to the client or any of the other
Did the expert rely on any information orally relayed to the
expert? If so, what was it?
Did the expert make any notes of it? Get copies of all written
information provided from whatever source.
Get copies of all notes taken by the expert.
Drafts of reports
"PLEASE HAVE RETYPED ON YOUR
OWN STATIONARY [sic]. THANK YOU.“
See Stephen D. Easton, "Dealing with Draft
Dodgers: Automatic Production of Drafts of
Expert Witness Reports," 22 Rev.Litig. 355,
See Trigon Ins. Co. v. United States,
204 F.R.D. 277, 291-96 (E.D.Va. 2001)
Get the details of this.
To be paid?
Percentage of income from expert
This will vary a lot depending on the kind
of expert and the nature of the case.
Rarely will you get the preliminary
opinion that is different from the final
opinion, and when you do there’ll be a
good explanation. But it doesn’t hurt to
An opinion that comes too early can be
Work the expert did on the case
Did the expert simply read the materials forwarded and formulate
Did she or he do any additional research?
Was there any actual experimentation necessary?
If so, was it done?
In this regard, did the expert have sufficient time, resources, and
information to render a satisfactory opinion?
Did the expert need anything else to formulate an opinion?
Is the expert finished?
Does he or she plan to do any additional work in the future?
Will he or she agree to let the lawyer know if any additional work
is necessary, or is done?
Are there any facts that are as yet unclear?
Would the expert's opinion change based on the resolution of the
Explore the expert’s understanding
of the facts
See what the expert believes the facts are?
Did the expert resolve disputed or questioned
Witnesses differ, for example, what if one witness
was right and the other wrong, would opinion
What if the facts were different?
Hypotheticals, would facts change?
Try not to lead too much here. Let the expert
tell you what he or she understands the facts
The expert's final opinions
You want to know all of the expert's
The expert doesn't want to just come out
and tell you.
You will have to get it out of the expert,
and it may take some time and effort.
“Reasonable degree of medical certainty,” “probable,”
The use of the terms "probable" and "possible" as a basis for
test of qualification or lack of qualification in respect to a
medical opinion has frequently converted this aspect of a trial
into a mere semantic ritual or hassle. The courts have come
to recognize that the competency of a doctor's testimony
cannot soundly be permitted to turn on a mechanical rule of
law as to which of the two terms he has employed.
Regardless of which term he may have used, if his testimony
is such in nature and basis of hypothesis as to judicially
impress that the opinion expressed represents his
professional judgment as to the most likely one among the
possible causes of the physical condition involved, the court
isentitled to admit the opinion and leave its weight to the jury.
Preparing for Daubert Challenges
Will the testimony be helpful to the factfinder? Rule 104.
Is the reasoning or methodology scientifically valid?
Is the methodology properly applied to the facts of this case?
(Does it fit?)
Has the scientific theory been tested?
Can it be tested?
Does the scientist use the same level of intellectual rigor in the
courtroom that he or she uses in the laboratory?
Has the theory been subjected to peer review?
Is there a known rate of error?
Is there a potential rate of error?
General acceptance in the scientific community?
Recall and Conversations with
This can be a very difficult area because
it’s entirely in the control of the expert.
Still, It’s worth exploring and seeing what
you can get.
Going After Admissions During
There are some points in your favor that
a reasonable expert is going to be forced
Get a standard textbook and read
uncontroversial passages to the doctor
and ask if he agrees with them.
The “Authoritative” issue.
"Refrain from stating that any single article or
text is authoritative within neuropsychology;
otherwise, you will be viewed as having relied
explicitly on the document to formulate
opinions, and the opposing counsel may use
any part of the document to impeach your
Hans O . Doerr, Albert S. Carlin, Eds Forensic
Neuropsychology "The Discovery Process:
Deposition, Trial Testimony, and Hearing
Testimony, G. Andrew H. Benjamin and Alfred
Kaszniak, p. 23 (1991).
Dan Poynter, Expert Witness Handbook: Tips
and Techniques for the Litigation Consultant
Q: Have you read Professor Gamble's book?
Q. Do you consider it authoritative?
A. Some of it. Please read me the part you want me
to agree with and I will tell you if I do.
"Expert witnesses may not quote
passages from someone else's book,
journal article, or other tome. They may,
however base their opinions on standard
authoritative texts. If you referred to or
considered a passage from a book, you
can be cross-examined on the entire
text. Do not admit the book is
authoritative." p. 161.
Identify documents you think you’ll need
Put each one in a separate folder
Put an exhibit sticker on it, but do not
Make enough copies. Figure out how
many you’ll need and make a couple
Making and Dealing With
Make sure the witness understands the
role of the lawyer. The lawyer is not the
Because the rules have become rather
strict, objections are fairly limited.
Objections to form
1. An inaccurate summary or quote of prior testimony.
2. Assuming facts not in evidence or without
3. Posing a hypothetical with no factual basis
4. Argumentative question.
5. Question used to "bully" the witness.
6. Question calling for narrative answer.
7. Leading questions
8. Multi-part, convoluted or "compound" questions;
9. "unintelligible" questions
Specialized Challenges for Deposing
Scientific, Technical, or Other
Ever issued reports?
Identify all information relied on by the
Anything you review did you did not rely
on or that you felt was unreliable for any
Any written notes? Any sticky tabs? Any yellow
Identify all opinions.
Get basis for opinions.
Go for underlying bases for opinions.
Did you rely on any treatises or authoritative
publications in forming your opinions in this
Should you have?
Are there any standard treatises in this field?
Why did you not avail yourself of information?
Are you aware of any videotapes or
recorded information that may not have
Have you reviewed any deposition or
report of any other expert witness?
A particular slide catching your eye?
Clipping is a handy way to collect important slides you want to go back to later.