The Trial Practice Tips Weblog

Preparing Experts for Depositions: Tips

When preparing experts for depositions, consider giving them these tips: 

• When asked about an unfamiliar document, review it thoroughly before answering questions.
• Don't argue with the questioner--and don't joke either.  
• Don't answer a question unless you're certain you understand it.
• If you're asked the same question question twice during a deposition, make sure your answers are consistent.

For more ideas like these, see Expert Preparation, by Christian C. Mester, Trial May 2010.

The tips in this post are derived from Mester's article, which focuses specifically on preparing med-mal experts for their depositions.

Experts: Attacking for Bias

A post at Paul Luvera's Plaintiff Trial Lawyer Tips titled "Attacking the Expert for Bias" is "a simple check list of reminders" of bias-related topics to ask at the expert's deposition.

These topics include--

• Advertising for Work
• Experience as an Expert
• Fees Charges
• Income from Expert Work
• Tort Reform Activity
• Witness Consultant
• Definitions Used in Arriving at Opinions

Though written by a plaintiffs' lawyer, the post might also be of interest to defense lawyers.

Where You'll Find the Experts

Looking for an expert witness? Start by looking at nearby universities. In his book, The View from the First Chair, Martin L. Grayson shares this anecdote--

The last time I needed a toxicologist on a case I was handling, I called the Department of Chemistry at UCLA, the biggest university campus in my area. I spoke to a professor there, and after describing the issue, he didn't hesitate to refer me to a colleague across town at USC whose research focused on the exact chemicals in the exposure case I was defending.

It's good advice. Most professors are skilled at explaining difficult subjects to laypersons, which is exactly what you want in an expert witness. If you take the alternative route of relying on one of those ubiquitous expert mills, you run the risk of hiring an expert who can be easily branded by your opponent as being nothing but a hired gun.

Related post: "Book Recommendation: The View from the First Chair."

Prior to the Expert Deposition: Investigate the C.V.

Don't save your review of an expert's CV for the night before the deposition. Read it well in advance of the deposition, then mark it up and investigate the expert's claims.

Has the expert exaggerated his qualifications? Such exaggerations can seriously undermine his credibility. Has the expert included items on his CV that are simply wrong? It happens. Even typographical errors indicate a level of sloppiness on the expert's part.

Here are some things to look for--

• What does the CV say about the expert's areas of expertise? How does this overlap with what the expert is going to testify about in your case? Sometimes there is a large gap between what the expert actually does at work and what he or she plans to testify about at trial.
• What are your expert's particular areas of research interest? Again, there is often a large gap between what the expert spending time researching in real life, and what he or she has been hired to testify about in your case.
• Does the CV contain puffery? Are there claimed memberships that have expired? Are there claimed licenses that have lapsed? Were the majority of the expert's honors and award granted years ago? All of these things are fair areas of inquiry at the deposition.
• What is omitted from the expert's CV? Always check news databases and published opinions to find out more about the expert's professional life and activities.
• To whom is the expert beholden? If the expert is working or consulting for industries that hold views contrary to the one you are presenting in your case, this is something you'll want to explore further at the deposition. If the expert's CV lists grants, find out who sponsored those grants.

Too often an expert's CV is all but ignored at depositions, when it is almost always fertile ground for questioning. Just remember to prepare yourself for these questions in advance (and to review your own expert's CV before presenting it to the other side).

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.

Researching Medical Experts Online

At the James Publishing weblog, Dorothy Clay Sims has a book excerpt titled "Checklist for Researching Defense Doctors," which includes a number of tips that will work for researching doctors hired by either side in a case.

Sims lists these sites, among others--

• ALMexperts.com
• Florida Med-Mal Claims Information
• Florida Office of Insurance Regulation
• AMA Links to State Medical Boards
• National Register of Health Service Providers in Psychology
• PubMed
• Google Scholar
• Amazon.com

To get the specifics as to the best way to use these sites (as well as some other sites I omitted from the list), you should read the full post.

Sims' post also also includes detailed instructions for using eight different databases within Lexis for researching medical experts. Sims' book is titled Exposing Deceptive Doctors.

A Recommended Trial-Ad Book That Won't Steer You Wrong

Although the book I am recommending today was written primarily as a law-school text, Trial Advocacy: Planning, Analysis, and Strategy is also an excellent resource for practitioners, especially younger lawyers working on their first trials.

Described as a "how-to book for trial lawyers," Trial Advocacy is full of practical information about all the areas of trial you'd expect: jury selection, opening, exhibits, direct, cross, experts, instructions, closing. The book also includes a DVD in which "experienced trial counsel present" a mock trial based on the materials in the book.

Here's a sample tip from the book, chosen pretty much at random from a chapter titled "Cross-Examination of Experts"--

The expert's opinion may be vulnerable in the following areas:

• The time the expert had or used in analyzing the data (the doctor examined the patient for ten minutes; psychiatrist did not examine criminal defendant until ten weeks after the crime);
• Information was incomplete (the engineer did not receive all the blueprints);
• Expert is making an incorrect assumption about the data (the expert assumes that the core soil sample he was given was from "quadrant 4";you will present evidence that the sample was from "quadrant 3," which invalidates the expert's calculation);
• Expert received faulty or biased data (much of the data is from an interested party);
• Expert's procedures or experiments for analyzing the data faulty, unreliable, left undone, or wrong (a mtallurgist failed to heat the metal to the appropriate temperature).

At almost 600 pages, it's a hefty book. You'll find a trailer for the DVD, sample documents, and ordering information at the book's companion website. You can also find the book at Amazon.

A Useful Question to Ask at Expert Depositions

Some lawyers routinely ask this question at expert depositions-- 

Q. "What is your understanding of your role in this litigation?" 

The question touches on a number of topics you will cover later in the deposition: the manner in which the expert came to be hired, what the expert was asked to do, the expert's working methods, and the expert's opinions.

Because the question can be answered in so many different ways, it functions as a sort of Rorschach test that will give you insight into an expert's manner of answering questions. Ask the question to ten different experts and you'll get ten different answers. 

Usually you'll learn something useful. If experts are improperly prepared, they might ramble on about their relationship with the lawyer who hired them; you might learn something your opposing lawyer didn't intend the expert to reveal. If experts are inexperienced, the question might make them uncomfortable; you'll learn how the expert handles stress.

Even if the expert answers the question without slipping up, you'll get some insight into how the expert thinks his opinions will be contributing to the case. Listen carefully to how the witness answers and then follow up appropriately. You'll also have plenty of opportunities later in the deposition to follow up on the myriad of sub-topics the question raises. 

Related post: "My Coverage of Expert Depositions in Deposition Checklists and Strategies."

Finding "The Best and Cheapest" Experts

In his popular plaintiff-oriented book David Ball on Damages, David Ball has a section titled "The Best and the Cheapest," which begins like this--

In every community, there is an ample supply of first-rate expert witnesses who can testify on a wide variety of topics. Explore this resource especially, but not exclusively, for smaller cases where you have no money to bring in the usual high-priced array. For between $50 and $100 an hour you can often solve some of the biggest problems in your case.

Who are these mystery experts? Look for them among "the best repository of testifying experts you can find: high school teachers."

According to Ball, high-school teachers are both cooperative and skilled at explaining difficult concepts to a lay audience.  They also have built-in credibility in the community.  As Ball writes, "They need not provide opinions. All they have to do is explain (and perhaps demonstrate) a principle or a process." (For more on this point, see my last post about experts.)

Finding an expert from among local high-school teachers is something I've never tried myself, but it's a tip worth thinking about. 

Questioning Experts on Direct: Focus on Methodology

Experts shouldn't force-feed jurors their opinions; instead, they should give jurors the tools -- the methodology -- to reach the right conclusions themselves.

Call it the softer approach. Rather than allowing the expert to make pronouncements with little explanation, put the explanation first. Begin by asking the expert to talk about his general methodology for dealing with cases like the one at trial. At this stage, the expert shouldn't refer to the facts of the particular case. While the expert's explanation should be detailed, his presentation should be simple and easy to understand.

Only after the expert's methodology is explained in a general way should you take up your particular case, applying each fact to the general methodology in the same step-by-step way you were taught to apply the facts to the law on a law-school exam.

This application of the facts of your case to the expert's methodology should lead clearly to the conclusion -- the opinion -- that the expert has been hired to give. If done right, the jurors should reach the same conclusion simultaneously with the expert.

Reference: Ball, David Ball on Damages (Second Edition). Next post: Ball's often-overlooked suggestion for finding inexpensive, credible experts in your own jurisdiction.

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.