Some lawyers try to improve their pre-trial settlement positions by conducting a full-blown cross-examination during an opposing expert’s deposition. The alternative is to stick to the usual goals of expert depositions: finding out what opinions the expert holds, then exploring the weaknesses in these opinions. This all becomes fodder for the later cross-examination at trial.
Which is the better approach? The risks of cross-examining during a deposition are obvious. As I wrote in my book Depositions Checklists and Strategies, "Previewing your cross-examination during a deposition may help to prepare your opponent for trial. Even if you manage to destroy the expert completely, a crafty opponent can often find a way to designate another, setting you back a step."
Now a friend has suggested a third approach, which brings us to the tip: videotape your expert depositions. By using video, you can conduct some limited cross-examination without losing much of the dramatic impact, since you can use the videotape for impeachment at trial.
The friend who uses this approach tells me his goal is to get five to ten minutes of good impeachment material during each deposition. An example would be successfully leading an expert out on a limb by extrapolating one of his weak opinions into an insupportable conclusion. Without a video record, the impact of this deposition testimony might be lost at trial. The expert will be ready for the trap and impeachment with the prior transcript might be hard to follow. Using video puts you in a stronger position. When the expert takes a different fork in the road to avoid your trap, you can cue up the video for impeachment and have the drama of the expert’s insupportable testimony reenacted in real time.
While nothing at trial ever goes exactly as planned, it’s a tip that’s worth a try.