Pre-Deposition Tips: How to Prepare to Take a Deposition- Plaintiff’s Perspective

by: Prince, Glover & Hayes Friday, June 18th, 2010

Techniques for Deposing Defense Experts

1. Prepare for the Worst and You Will Obtain the Best Results
The deposition and cross-examination of an expert witness are among the most challenging aspects of any case. The old saying that success is “90 percent perspiration and 10 percent inspiration” is especially key to an effective deposition of an expert witness. Through diligent and creative discovery, Plaintiff’s counsel must carefully develop and analyze:

a. Flaws or weaknesses in the expert’s background;
b. Biases of the expert; and,
c. Flawed assumptions or factual errors on which the expert bases his or her opinions.

By so doing, counsel can prepare for a focused, successful cross of the expert at trial.

2. Do your Homework
There is no substitute for rolling up your sleeves and learning as much as you can, as early as you can, about the defense theory, as well as the Defendant’s expert.
Promptly gather information
Preserve momentum in a lawsuit by serving written discovery requests with the Complaint or shortly thereafter.
Do not overlook the obvious—visit the premises before any major deposition
It is essential to visit the scene of the injury well in advance of an opposing expert’s deposition. Take photographs (including aerials) and videotape any onsite inspection.
It takes one to know one—use your expert to help prepare for the Defendant’s expert deposition

One of the most effective uses of your expert is in developing themes and evidence in a case. Plaintiff’s counsel should consult with his or her expert regarding investigating the case, developing evidence through discovery, and preparing for an effective trial cross-examination of an opposing expert. For example, the Plaintiff’s expert may point out a helpful authoritative treatise or applicable code section.

Check expert credentials and publications before the discovery deposition

Well in advance of the opposing expert’s deposition, Plaintiff’s counsel should obtain the expert’s resume and a list of any publications by the expert. The expert’s publications should be reviewed and prior testimony should be located and evaluated. Plaintiff’s counsel should inquire of other experts in the field to determine the “background” of the expert. Board certifications should be checked. Memberships in various organizations should be verified.
The internet is another area that should be explored well in advance of the discovery deposition. Counsel can obtain a wealth of information about the expert witness-including advertisements-from the internet.

3. Know the Ground Rules
If Plaintiff’s counsel is knowledgeable regarding the specific rules governing expert testimony at trial, deposition questions can be tailored to set up a motion to exclude the expert’s testimony. The following federal rules have Alabama state counterparts.

a. Federal Rule of Evidence 702-limits on expert testimony
If specialized knowledge will assist the fact finder in understanding the evidence or in deciding a fact issues, a witness who qualifies as an expert may testify in the form of an opinion or otherwise.

b. Daubert v. Merrell Dow Pharmaceuticals, Inc.
A district court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether it is appropriate to the case.

c. Federal Rule of Evidence 703-data upon which opinion based is not “reasonable”
The underlying data supporting the opinion that is not the kind reasonably relied upon by experts may be grounds to include the expert’s opinion.

d. Federal Rule of Evidence-403-prejudice outweighs probative value
If the expert’s opinion, or the data upon which he or she relies, is highly prejudicial, and the prejudice outweighs the benefits, the trial court may eliminate or reduce the scope of the expert’s testimony.


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