Tips for Young Attorneys- Deposition Prep Part 3: Experts

Welcome back to our series on preparing for deposition.  Today we will move into a intimidating area — expert witnesses.  Adverse experts are so menacing because without exception, they know more about what they’re talking about than you do no matter how much preparation you perform in advance of deposition. 

However, you’re not powerless to draw some blood in deposition.  Here are some tips to help:

1) Heavy reconnaisance; obviously, but what kind?  While I cannot become more of an expert than a doctor or an engineer, I still need to know some basics.  Typically, you should have the basics of the expert’s opinion in advance of deposition.  So, you will want to review some secondary sources to see if their opinions are widely held.  Another great tool is obtaining transcripts of the expert’s prior depositions to see if their current opinions contradict prior ones.  Idex is a great third-party source of these.  You can also contact attorneys involved in their prior cases and see if they will provide you the expert’s deposition, as experts often must provide a list of cases in which they have testifed.  You would be surprised how often experts contradict themselves.  After all, they are being paid to provide a certain opinion.  Also, all the same social media and criminal background checks apply. 

2) Setting reasonable goals.  You will rarely get an expert to change their opinion to side with your client’s position.  Still, you can garner some key admissions without having them switch sides completely.  First, you have the easy ones:  1) getting paid to be here; 2) you would not testify today unless I paid you; 3) you have never met/examined the Plaintiff.  Also, you will sometimes encounter experts who draw conclusions based on your opponent’s side of a disputed fact issue.  For example, say the case involves a disputed issue about whether a material fact was disclosed prior to a business transaction.  The opposing expert may have an opinion such as “Company X was right to renege on the agreement after it realized that Company Y did not disclose Z.”  Well, when did this expert become the trier of fact?  An effective line of questioning will get the expert to admit that 1) the parties dispute whether Company Y disclosed Z; 2) If the expert’s assumption about the fact issue is wrong, their opinion on the matter is moot; and 3) the expert is not here to opine on fact issues. 

We will have some more expert depo prep tips next week!

Explore posts in the same categories: Practice Tips for Young Attorneys

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