The Illinois Trial Practice Weblog

An Expert-Related Practice Tip from Deposition Checklists and Strategies

This is just one of the many practice tips that you'll find liberally scattered throughout the eight chapters of my book, Deposition Checklists and Strategies (James Publishing):

§4:255 Practice Tip: What the Expert Did Not Do

Remember to ask the expert not only what he did to prepare himself to render an opinion, but what he didn’t do. Of course, you cannot come right out and ask, “Please tell me what you failed to do in rendering an opinion.” Instead, ask the expert whether he did or didn’t do specific things.

In a pharmaceutical case, ask the expert whether he performed these tasks in order to prepare himself to give an opinion:

• Ask the witness whether there was anything that would have been helpful to him in reaching an opinion, but which he lacked the time to do.
• If the witness answers with a list of things for which he lacked time to do, ask why conducting these steps would have helped him to reach an opinion.
• Ask the expert whether or not he personally examined the Plaintiff. If not, then all his knowledge about the Plaintiff’s medical condition must have come from the medical records.
• Ask the witness whether he read all the medical records. If so, is he confident that he obtained them all? Why? Did he ask the defendant’s lawyers to provide him with any additional medical records?
• Ask the witness whether he performed a search of all the relevant literature about the particular issue. If not, why not?
• Ask the expert whether he consulted with other experts in the field. If not, why not?
• Ask the expert if he reviewed all the documents in possession of the defendant that were relevant to his opinion. If so, who provided him with these documents, and how does he know he reviewed all that were relevant?

In other sorts of products-liability cases, you can ask whether the expert performed all relevant tests, conducted a literature search to determine whether there were other incidents of injury similar to the one that gave rise to the lawsuit, and so on.

For more information about the book, see this brochure at James Publishing (pdf). You can also learn more about the book in the following posts at Illinois Trial Practice--

• "Listing the Chapters in My Deposition Book"
• "A Plug for My Deposition Book: Some Specialized Deposition Outlines"
• "My Coverage of Expert Depositions in Deposition Checklists and Strategies"
• "Listing Some of the Practice Tips in My Deposition Book"
• "More Practice Tips from My Deposition Book"

A Lawyer's Duty: Control the Client at Depositions

Do lawyers have a duty to control their clients during depositions? Take a look at this recent article from Law.com--

Lawyer and Client Sanctioned Over Client's Conduct, Use of 'F Word' During Deposition

A federal judge has levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a "spectacular failure" because of the client's constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer's failure to rein him in.

In his 44-page opinion in GMAC Bank v. HTFC Corp., U.S. District Judge Eduardo C. Robreno found that Aaron Wider, the CEO of HTFC, engaged in "hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony."

In defending his actions, the lawyer representing the allegedly vulgar client said that he tried to control his client, but that his actions took place off the record. The judge's response? "[E]ven if this assertion is to be believed, [the client's] continuing misconduct indicates that whatever efforts [the lawyer] made were woefully ineffectual. In fact, [the lawyer's] meek attempts to intercede and his otherwise silent toleration of [the client's] conduct only emboldened [the client] to further flout the procedural rules."

So there you go: control your clients in depositions. If you can't, it probably means you shouldn't be representing them in the first place. I sure wouldn't.

Related posts:

1. "Controlling Your Client During Deposition."

2.  "Defending Depositions: Correcting Your Client's Unintentional Errors."

Common Deposition Error: Repeating Yourself

Once you get good testimony at a deposition, you're best to leave the testimony alone. Take the good answer from the witness and move on.

It seems like obvious advice, but some lawyers can't wait to read the good answer in the printed transcript. Perhaps not believing their good fortune, or perhaps wanting to relive the excitement of the five minutes when everything was going their way, they return to the question again a little later in the deposition. They ask the question to which they got a good answer a second time.

Why give the witness a chance to change or explain his answer? I can think of only a couple of reasons, neither of them very good: (1) You're not sure whether you've pinned the witness down or (2) you can't remember what the witness said.

Both of these possibilities should be dealt with on the first go-round. First, pin the witness down after you get good testimony. Second, take good notes. Then move on to the next area of questioning--never to return until trial, when it will be much easier to impeach the witness than during the deposition when you have no transcript.

Deposition Podcasts: Advanced Techniques

For free deposition advice, why not try my three podcasts on advanced deposition techniques? Originally posted Legal Underground, I'm reprising them here. Just follow the links--

Advanced Deposition Techniques #1: Five Tips for Asserting Control at Depositions

Advanced Deposition Techniques #2: Four Ways to Use Psychology at Your Next Deposition

Advanced Deposition Techniques #3: Miscellaneous Tips for Expert Depositions

Combined, these three podcasts have now had nearly 3,000 downloads. You can listen on a computer with speakers or even better, on any iPod or mp3 player.

If you like what you hear, don't forget my book: Deposition Checklists & Strategies (James Publishing, 2d Ed. 2007).

More Practice Tips from My Deposition Book

The book I recently wrote about depositions, Deposition Checklists and Strategies (James Publishing, 2006 Rev. 2007), contains eight chapters. As a bonus, each chapter contains an assortment of "practice tips," comparable to the type of tips I post here on the weblog. Here are some of the practice tips you'll find in Chapter 5, Medical Malpractice--

• Practice Tip: Establishing Liability Without an Expert
• Practice Tip: Jury Instructions
• Practice Tip: Case Selection
• Practice Tip: Explaining Medical Malpractice Cases to the Client
• Practice Tip: Hospital Liability
• Practice Tip: Procedurally-Based Defense Strategies
• Caution: Pre-Litigation Collection of Medical Records
• Practice Tip: Selecting Your Medical Expert
• Caution: Don't Wait to Long to Consult an Expert
• Practice Tip: Thinking in Reverse About Witnesses
• Practice Tip: The Locality Rule and Expert Witnesses
• Practice Tip: The Difficult Witness
• Practice Tip: Prepare for the Doctor-Defendant Like You Would an Expert
• Practice Tip: Shortening the Preliminary Questions
• Practice Tip: Examine the Doctor's Original Medical Records
• Practice Tip: Admissibility of Statements by Your Client
• Practice Tip: Peer Review
• Practice Tip: The Defendant Who Is Qualified as an Expert
• Caution: Never Finish Until You're Done
• Practice Tip: Prior Lawsuits
• Practice Tip: Medical Terminology
• Practice Tip: "In Lay Terms"

For more information about the book, see this brochure at James Publishing (pdf). You can also learn more about the book in the following posts at Illinois Trial Practice--

• "Listing the Chapters in My Deposition Book"
• "A Plug for My Deposition Book: Some Specialized Deposition Outlines"
• "My Coverage of Expert Depositions in Deposition Checklists and Strategies"
• "Listing Some of the Practice Tips in My Deposition Book"

Depositions: The "Show Him the Document" Objection

The show-him-the-document objection goes something like this:

Objection! You're asking the witness a question about a document you're holding in your hand. If you're going to ask questions about it, show it to the witness.

Is it a valid objection? No. You are entitled to ask what the witness knows about events or occurrences or anything at all without showing him documents first. Later you might decide to show the witness the document--to impeach the witness's recollection, for example, or to refresh the witness's memory if he has no recollection--but you don't have to show him the document first.

Questions about documents might be objectionable for other reasons, in which case other objections might apply. A question "did you sign a memorandum dated 12/11/05," put to a witness while you are looking at  the memorandum, might lack foundation and be vague. But it's not objectionable because you're holding the document in your hand and the witness can't see it.

The show-him-the-document objection? Ignore it and have the witness answer.

Those Preliminary Deposition Questions: Don't Make a Speech

Because they’re impatient to get it out of the way, some lawyers turn the standard preliminary deposition questions into a speech:

Hi, I’m Bill Smith. I represent the plaintiff and I’m here to ask you some questions today. As you probably know, you’re under oath today and sworn to tell the truth. I’m here today to try to find out some basic information. If you don’t understand one of my questions, please let me know. And let me know if you want to take a break. Okay?

What’s wrong with this approach? One of the purposes of the preliminary questions is to make a record that the deponent is fully aware of the way the deposition works. This record might be important at trial if you need to use the deposition to impeach the witness. An example:

Q. You remember when I took your deposition on January 22, 2008?

Q. You remember you were sworn to tell the truth?

Q. And I told you that even though we were in an informal setting around a conference table, your testimony had the same force and effect as if we were in trial before a judge and jury?

Q. I asked you if you were prepared to answer my questions truthfully?

Q. And you answered “yes”?

. . .

Though you won’t often conduct this sort of cross-examination, you won't even have the option if you start the deposition with a muddy record. Rather than make a speech at the start of a deposition, ask questions or make statements followed by "Okay?" or "Do you understand?" This will give you short "impeachment nuggets" that you can use later, if necessary.

For more on preliminary deposition questions, see the following posts:

1.  "Those Preliminary Deposition Questions: What's Their Purpose?"
2. "How to Cross-Examine at Trial with Inconsistent Statements"
3. "Impeaching at Trial with a Prior Inconsistent Statement: How to Validate First"

Expert Depositions: Pay Attention to the Dates on the Expert's CV

When an expert's CV attempts to summarize a long career, you can often get some good fodder for cross-examination by paying attention to the dates. Did the expert's real-life work experience with the subject of his testimony end years before? Did it just begin? What was the date of the expert's most recent publication? The date of the most recent publication on the topic about which he's testifying?

Questions like these raise interesting topics for cross-examination. At a recent trial, I saw an expert cross-examined along these lines--

You have a section in your CV titled Honors and Awards?
The last honor or award that's listed is dated 1978?
You haven't received any honors or awards since 1978?
That's when you were teaching?
But you haven't done any teaching in three decades?

For more about cross-examining experts, see also these related posts: "Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial" and "Cross-Examining Experts During Depositions: A Tip."

For those who have my book Deposition Checklists and Strategies, see also Chapter I, VII, Expert Depositions, and §1:216 Five Ways to Hit Homeruns with an Expert's CV.

Depositions: Questions to Ask about Documents

Here's a checklist of some questions you can ask about documents at depositions, while ignoring the objection from the other side that the document "speaks for itself." It doesn't, and the objection can be ignored--

• Who wrote the document;
• Who received the document;
• Whether the witness received the document;
• Whether the witness maintained the document in printed or electronic format, and where, and why;
• Where the original of the document is maintained;
• The identity of the author and the recipients;
• The identify of others mentioned in the document;
• If the witness wrote the document, what he meant by certain passages;
• If the witness didn't write the document but did receive it, whether he took any action as a result of reading the document;
• Whether the facts contained in the document are accurate, and why or why not;
• Whether the events described in the document are described correctly, and why or why not;
• Whether the witness agrees with the way particular passages are phrased, and why or why not;
• Whether the document refreshes the witness's recollection on points about which the witness claimed to have no memory;
• Whether the witness reviewed the document in preparation for the deposition;
• Questions meant to authenticate the document for trial;
• Questions meant to establish foundational elements for use of the document at trial.

Note that these questions can be mixed or matched, used or not used, as the situation merits and in any order.

See also these related posts:

• "Authenticating Exhibits Using Requests for Admissions: Two Methods"
• "Using Emails in Support of Summary Judgment or at Trial"
• "How to Introduce Exhibits at Trial"

Depositions: Critical Questions for a Defendant Doctor

In a past post, I wrote about questions you should ask in every deposition. Here are a few more key questions when the deponent is a defendant doctor in a medical malpractice case:

• Whether the doctor has ever had a medical license suspended or revoked;
• The contents of the doctor's medical records, if handwritten and hard to read;
• Whether the doctor's preparation for the deposition included the review of any medical literature, and if so, what it was;
• Whether the doctor, in his view, committed any errors of judgment in their treatment of the patient;
• Conversations about the event with the patient, family members or other doctors;
• The doctor's understanding of medical definitions important to the case, and whether these definitions are commonly accepted in the medical community.

Source: "15 Key Deposition Techniques in a Medical Malpractice Case," by Gerry Oginski writing at the South Carolina Trial Law Blog.