The Trial Practice Tips Weblog

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.

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."