This is a presentation about how to prepare for the deposition of an expert witness.

1. Little Rock, Arkansas
December 5, 2008

2. Preparing for the Deposition
of the Opposing Expert Witness
 Determining Your Goals For The Deposition
 Careful Examination About Background
 Information
 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

3. Preparing for the Deposition of the
Opposing Expert Witness
 Determining your goals for the
deposition
 What is this expert’s role in this case?
 Why did the opposing counsel pick this
expert?
 What does this expert add to the opposing
counsel’s case?
 Narrow down the expert’s anticipated role.

4. 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
saying?
 If so, the real goal will be to figure out what
criticisms there are.

5. Understanding the issues
 This can be difficult, and requires a lot of
work.
 We usually don’t have the educational
background.
 We have to rely on our experts.
 Still, it’s important to read materials.
 Books
 Journals/Magazines
 Internet sites (increasingly important)

6. 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
useful.

7. Google
 Traditional
Google is
great.
 Google
Scholar and
Google
Books can
be very
useful.

8. Google Scholar
 Google scholar usually just leads you to
abstracts.
 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
Internet.

9. Google Scholar
 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
dictionary.
 I searched the term in Google scholar and
found enough uses of the term in context to
challenge that characterization.

10. Google Books
 Google Books has been a matter of
controversy because of allegations that it
violates copyright.
 It allows you to see various parts of
some books.
 There is often enough to tell you if you
want to order the book.
 With enough advance time, interlibrary
loan is available.

11. Google Books
 Google
Books makes
research
from the
desktop
much easier
than before.

12. Questia
 Questia is
occasionally
useful. It is an
online library
mostly designed
to help college
students write
papers, but every
once in a while it
has information
useful to lawyers
or experts.

13. Others
 www.highbeam.com
 Mostly newspapers and magazines, but some
journals that can be useful
 www.mywire.com
 Primarily publications. I have occasionally found
background information there that is useful.
 Scientific American Digital
www.sciamdigital.com
 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
great.

14. 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
West 2007)
 If they happen to cover your topic, there
will be references to scientific as well as
legal materials on it.

15. Hypothetical
 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.

16. Hypothetical
 The question was whether exposure to
marijuana could have caused cerebral
palsy.
 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.

17. Hypothetical
 Before the
deposition,
not only
consult with
experts, but
actually read
the published
materials

18. Hypothetical
 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.

19. 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
be predictable.
 Demonstrations, this afternoon
 Document examiner
 Life care planner

20. 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.

21. Teaching
 Find out about teaching
 David Tirella http://
tirellaconsulting.com/home.html
 Article about selecting expert witnesses
recommends four “p’s”
 Practitioner
 Published
 Professor
 Presentation
 Of course he left out the fifth “p” about such an
expert—”pricey”.

22. Professor
 Every expert is going to have to be a
professor.
 In deposition, however, the expert’s
demeanor is going to be completely
different.
 Try to figure out how the expert will
explain his position to the jury.

23. Employment
 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
experts.

24. 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
creative.

25. Previous depositions
 Best if you can get them before the
deposition.
 Still useful for trial. Find out what you
can.

26. Federal Rules
 Federal expert reports are great sources
for information
 written report
 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
testimony

27.  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
support them;
 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;

28.  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.

29. 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
the past?

30. 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
witnesses?
 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.

31. 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,
358 (2003)
 See Trigon Ins. Co. v. United States,
204 F.R.D. 277, 291-96 (E.D.Va. 2001)

32. Expert compensation
 Get the details of this.
 Billing records
 Paid yet?
 To be paid?
 Billing practices?
 Percentage of income from expert
witness work?

33. Preliminary opinions
 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
look.
 An opinion that comes too early can be
useful.

34. Work the expert did on the case
 Did the expert simply read the materials forwarded and formulate
an opinion?
 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
unclear facts?

35. Explore the expert’s understanding
of the facts
 See what the expert believes the facts are?
 Did the expert resolve disputed or questioned
facts?
 Witnesses differ, for example, what if one witness
was right and the other wrong, would opinion
change?
 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
to be.

36. The expert's final opinions
 You want to know all of the expert's
opinions.
 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.

37. Legal terminology
 “Reasonable degree of medical certainty,” “probable,”
“possible”
 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.

38. 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?

39. Recall and Conversations with
Counsel
 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.

40. Going After Admissions During
Deposition
 There are some points in your favor that
a reasonable expert is going to be forced
to admit.
 Get a standard textbook and read
uncontroversial passages to the doctor
and ask if he agrees with them.
 The “Authoritative” issue.

41. “Authoritative”
 "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
credibility."
 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).

42. Authoritative
 Dan Poynter, Expert Witness Handbook: Tips
and Techniques for the Litigation Consultant
(2005), recommends:
 Q: Have you read Professor Gamble's book?
 A: Yes.
 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.
 P. 109.

43. Authoritative
 "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.

44. Exhibits
 Identify documents you think you’ll need
 Put each one in a separate folder
 Put an exhibit sticker on it, but do not
number it
 Make enough copies. Figure out how
many you’ll need and make a couple
more.

45. Making and Dealing With
Objections
 Make sure the witness understands the
role of the lawyer. The lawyer is not the
judge.
 Because the rules have become rather
strict, objections are fairly limited.

46. Objections to form
 1. An inaccurate summary or quote of prior testimony.
 2. Assuming facts not in evidence or without
foundation.
 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

47. Specialized Challenges
 Specialized Challenges for Deposing
Scientific, Technical, or Other
Specialized Experts
 Ever issued reports?
 Identify all information relied on by the
expert.
 Anything you review did you did not rely
on or that you felt was unreliable for any
reason.

48.  Specialized challenges
 Any written notes? Any sticky tabs? Any yellow
highlights?
 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
case?
 Should you have?
 Are there any standard treatises in this field?
 Why did you not avail yourself of information?

49.  Specialized Challenges
 Are you aware of any videotapes or
recorded information that may not have
been transcribed?
 Have you reviewed any deposition or
report of any other expert witness?