The Illinois Trial Practice Weblog

Missouri Lawyers: New Expert Rule, Effective January, 2009

There's a new expert rule for Missouri lawyers, effective January, 2009. The change was recently announced in an order issued by the Missouri Supreme Court. See particularly Rule 56.01, which outlines an amended expert interrogatory--

(A) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial by providing:

(i) Such expert’s name, address, occupation, place of employment and qualifications to give an opinion. If the expert’s curriculum vitae contains this information, the information may be provided by attaching a copy of the expert’s curriculum vitae to the interrogatory answers;

(ii) The general nature of the subject matter on which the expert is expected to testify;

(iii) A list of the expert’s publications with sufficient information to permit the publications to be located, including, the title, name of publisher, and date of each publication;

(iv) court name, cause number, parties’ names and the name and address of the retaining law firm for all cases in which the expert has testified in court, testified by deposition or within the past forty-eight months has given a report pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure;

(v) the amount the retaining lawyer, the retaining law firm and the retaining party in the aggregate paid the expert and the expert’s consulting firm during the past forty-eight months;

(vi) The terms of the compensation agreement with the expert, including the amount to be paid to the expert; and                                     
(vii) The expert’s hourly deposition fee.

Subparts (iii), (iv), and (v) are new. The amended Rule 56.01(b)(4)(B) also states that an expert must produce, at the beginning of the expert's deposition, "[a]ll documents prepared, reviewed or received" by the expert in the case.

A Must-Not-Forget Tip for Dealing with Experts

Here's some good advice about dealing with experts, posted by Ron Miller at the Trial Lawyer Resource Center:

Do not send a letter, email or even leave a telephone message to an expert (or fact witness) that you would not like to read to a jury.

The complete post is here. Miller's other weblog is the Maryland Injury Lawyer Blog.

Related post: "Don't E-Mail a Testifying Expert."

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"

Experts in Illinois: The Duty to Disclose Begins with an Interrogatory

Question: You represent the plaintiff in a case in which the trial court has entered a scheduling order requiring you to disclose your experts by a certain date. You do so, in addition to sending the other side a report. However, the report fails to include all the expert's opinions. Assuming the defendant never filed a Rule 213 expert interrogatory, what is going to happen to those extra, undisclosed opinions at trial? Will they be excluded, or not?

Answer: In Heriford v. Dawson, the Fourth District Appellate Court ruled that the undisclosed opinions can come in. Reversing the trial court, the Fourth District stated as follows--

[W]e find that an interrogatory is the trigger for a plaintiff’s duty to disclose the nature and extent of her expert’s opinion. The decision of the trial court, to bar evidence of damages without engaging in the application of its discretionary authority and thereafter award a directed verdict in favor of Moore, is in error. We, therefore, reverse the judgment awarded to Moore.

Heriford v. Dawson is also discussed in this month's Trial Briefs, the newsletter of the ISBA's Section on Civil Practice and Procedure. See "'Tactical gamesmanship' and trial practice: Can it be good advocacy?" by Patrick M. Kinally (ISBA section members only). While critical of the Heriford ruling, Kinally calls it "a must read for anyone trying civil cases."

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.

Cross-Examining Experts During Depositions: A Tip

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.

My Coverage of Expert Depositions in Deposition Checklists and Strategies

I've always thought that it's depositions of experts that are the most interesting and fun to do. In keeping with my interest in expert depositions, I made sure to cover them at length in my book Deposition Checklists and Strategies.

Please excuse this brief commercial, but I wanted to digress from this weblog's usual fare to point out some of the book's contents. The coverage of expert depositions includes a detailed book section about the basics of expert depositions, including eight sections on "the Goals of Expert Depositions," ten sections on "How to Prepare for Expert Depositions," and seven sections on "Expert Depositions Strategies." Some of these separate sections include some of the "practice tips" I've listed below.

In addition, the book includes questions and answers from three full expert depositions:

• Sample Deposition: Defendant’s Causation Expert in a Defective Drug Case.
• Sample Deposition: Defendant’s Roofing Expert in a Property Damage Case.
• Sample Deposition: The Defendant’s Accident Reconstruction Expert.

These sample depositions serve as a template for deposing any kind of expert.

Finally, spread throughout the book, you'll find separate sections containing "practice tips" for expert depositions. Here are some of them:

• Practice Tip: Attempting to Strike the Expert
• Practice Tip: Five Ways to Hit Home Runs With an Expert’s CV
• Practice Tip: Privilege and Experts
• Practice Tip: “Why Is That?” and Other Follow-Up Questions That Never Fail
• Practice Tip: What to Do When You Arrive for an Expert’s Deposition
• Practice Tip: What to Do When the Defendant Buries You With Experts
• Practice Tip: Establish the Role the Defendant’s Lawyer Played in Assisting the Defendant’s Expert
• Practice Tip: How to Move Quickly Through the Expert’s File
• Practice Tip: Catch the Expert Unprepared (by Finding Out What He Hasn’t Read)
• Practice Tip: Asserting Control Over the Witness Early in the Deposition
• Practice Tip: When and How Was the Expert Retained
• Practice Tip: What the Expert Did Not Do
• Practice Tip: E-Mails
• Practice Tip: Pinning Down the Expert
• Practice Tip: You Don’t Need to Be Smarter than the Expert
• Practice Tip: Using the Deposition to Cross-Examine at Trial

There's all this and much more about experts in the book. That concludes this brief commercial. If you want to learn more, look here: Deposition Checklists and Strategies (James Publishing 2006).

Cross-Examining by Body Language and Tone of Voice

While I warned in a previous post that many witnesses are liars, a more common type of false testimony is overstatement and exaggeration. This sort of "minor" falsification is characteristic of the sort of casual, inexact way of speaking that all of us regularly use in our everyday lives. It's a way of speaking, however, that doesn't translate well when used in a deposition or the courtroom.

Ex: "Before this car accident, I never suffered any medical problems in my entire life."
Ex: "It's impossible to find backups of last year's emails."

For a lawyer wishing to confront exaggeration and overstatement, it's sometimes hard to know how to respond. You can't simply say, "I don't believe you. Please give me the real answer." But you can do something very close. Or, at least, some experienced lawyers can. The trick has everything to do with body language and tone of voice. I know because I've been on the receiving end of such treatment. Even when it's damaged my own witnesses, however, I've always admired the ability of the lawyers who were old and wise enough to pull it off.

How do they do it? It's a matter of demonstrating a complete lack of faith in the witness's answer by, perhaps, raising the eyebrows in a mock expression of disbelief. Then the lawyer repeats the witnesses' last answer but gives it a special spin. "Mr. Smith, do you really mean to tell me that . . . " or "Doctor, certainly you can't mean that . . . ." or "Mr. Jones, I'm certain I didn't understand you correctly. You mean to tell me that . . . " A simpler alternative is to omit the preamble and simply repeat the witness's answer with the prerequisite disbelieving expression and tone of voice. "Smoking isn't associated with lung cancer?"

The approach can also be accomplished in a light-hearted manner. I'll never forget the time an opposing lawyer caused one of my experts to become completely unglued at a deposition simply by chuckling at his answers and repeating the phrase, "C'mon doctor, it's just can't be the case that . . . "

Some witnesses would have become defensive and dug in their heels at questions like these, but this witness was especially susceptible to the mocking approach. It's an approach I try to keep in mind when I'm doing my own depositions. In my notes, I call it the "c'mon doctor" approach. Although experts seems more susceptible to this treatment than fact witnesses--perhaps because experts are more concerned about how other professionals are assessing their credibility--the approach can work on all types of witnesses, assuming they're actually engaging in exaggeration or overstatement.

"Oh, c'mon, Mr. Witness. No medical problems in your entire life? Is that what you really mean to say?"

Of course, questions like these can often be objectionable. They start to become argumentative pretty quickly, for example. But it's easy to simply restate the question after the other side objects. Let the witness answer subject to the objection, then back up a step. This time the witness will know you're on to him. "I'm going to ask my question again. What medical problems did you have before the accident?"

Although it's not always an easy technique to pull off, the method described in this post can be a very effective way of coping with exaggeration and overstatement by certain witnesses.

Deposition Tip: In Preparing for a Witness, Always Check the Web

In preparing for a deposition, it's easy to slip into this mindset: anything that's relevant to the case is already contained in the file. Review the file and that's enough.

It's lazy thinking. In these days when information is cheap, it always makes sense to query Google about your witness. When you're done there, do a search in a comprehensive news database like those found at Westlaw or Lexis. You'll never know what you'll turn up.

Often, witnesses have their own websites. This is especially true of experts. When reading the expert's website, look for mistakes, exaggerations, and anything that might contradict the testimony the witness is expected to give at trial.

For more tips like this one, see the deposition and expert categories on this website, as well as my book, Deposition Checklists and Strategies (James Publishing 2006).

Videotaping the Deposition of Your Opposing Expert

Some lawyers insist on videotaping discovery depositions of opposing experts. Though it adds an additional case expense, impeachment during the later cross-examination at trial can have more impact using video than just a dry deposition transcript.

Related posts:

1. "How to Cross-Examine at Trial with Inconsistent Statements"

2. "Impeaching at Trial with a Prior Inconsistent Statement: How to Validate First"