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

by: Prince, Glover & Hayes Tuesday, June 22nd, 2010

Techniques for Deposing Defense Experts- Continued

4. Focus Your Attack-The Deposition Should Fit the Theory of the Case and Set up Cross-Examination
If counsel has done his or her own homework and knows the ground rules, he or she should be ready to formulate an effective strategy to cross-examine the expert based on information obtained from the discovery deposition.
Keep it simple
In essence, the following are just a few “themes” for cross-examination:
a. Flawed qualifications
The expert’s background, education, employment and experience are not sufficient to enable him or her to render a meaningful opinion on a topic.
b. Bias
The expert’s testimony in the past is heavily weighted in favor of defendants; the expert has frequently worked for defense counsel; the expert’s fees are unreasonably high; or the expert has become a “professional witness” by earning most of his or her income through service as an expert witness
c. Errors and inconsistencies
The expert’s testimony is based on facts and assumptions that are incorrect; the expert’s testimony at trial is inconsistent with previous testimony or publications.

d. Left field

The expert’s views are contrary to authoritative published reports and mainstream expert opinions.

Depositions should be conducted with open questions to provide an opportunity to develop each of these areas.

5. Remember the Goal of a Discovery Deposition is to “Discover”

Get the basics

Many lawyers lose sight of the purpose of an expert’s discovery deposition by engaging in argument or debate with the expert. The Plaintiff’s lawyer must use the session to become familiar with the witness and to become educated on the basis for, and scope of, the expert’s opinion. Plaintiff’s counsel, at a minimum, should pin down the expert regarding the following:

a. The expert’s resume (that it is accurate and complete)

b. The expert’s education, experience, and employment

c. The expert’s prior testimony (and whether a court has refused to certify him or her as an expert)

d. The expert’s relationship to the defense counsel

e. The expert’s publications

f. The texts and publications the expert considers authoritative

g. The expert’s board and association memberships

h. All the materials the expert reviewed in forming his or her opinion and in preparing for the deposition

i. All reports, draft reports, and correspondence prepared by the expert prior to the deposition

j. The areas in which the defense’s expert agrees (and those in which he or she disagrees) with the plaintiff’s expert and the reasons

k. The expert’s opinions and conclusions

l. All the facts and assumptions on which the expert relied in forming his or her opinions or conclusions

m. The expert’s opinions of what he or she considers his or her primary field of expertise

n. The names of individuals who the expert believes are preeminent authorities in the field in which the expert is testifying

o. The amount of time the expert spent on-site prior to issuing his or her opinion

p. The amount of time the expert spent reviewing materials

q. The amount of money the expert is charging for services

r. How the expert came to be retained

s. The percentage of the expert’s income derived from expert testimony

t. Any other questions your own expert recommends
Be Patient

Set up your point on cross-examination with innocuous questions. Do not let the witness see where you are going.


Keep sentences short and free of jargon.

Obtain closure

Remind the witness that this is your only opportunity to learn his or her opinions and the methods or process by which he or she arrived at those conclusions. Generally start by asking the witness to tell you “all” of his or her assumptions and opinions. End by repeating the questions: “Have you now told me all of your opinions and conclusions?” Ask the witness if he or she plans to review any more literature or perform any tests before trial. In essence, lock him or her in.

Mind your manners

Counsel should keep the tone and demeanor of the examination courteous and professional. Arguing with the witness only serves to generate juror sympathy for the witness and encourages the witness to become wary and entrenched.


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