Monday Practice Tips for Young Attorneys- Don’t Qualify the Opposing Expert!

Hope everyone had a better weekend than this Florida Gator fan!  Today, we circle back to our series on deposition preparation.  When we last spoke on this issue, we were starting to dole out some tips for deposing experts.  Today we focus on another associated tip:  Never qualify opposing experts in your deposition!

In advance of the deposition, you will undoubtedly receive a copy of the expert’s curriculum vitae, setting forth their storied academic and professional history, the three dozen articles they have had published, their various academic appointments, etc.  For some reason, it’s a natural urge to draw up a series of introduction questions about the expert’s qualifications.  Almost like an early throat-clearing part of your outline when you are afraid to start digging into the heart of the area of expertise.  Having the expert “qualify himself” during your examination is a big mistake for several practical reasons:

1) While you are accomplishing absolutely nothing that helps your case, you’re chewing up 15-20 minutes of valuable time.  As a reminder, your client has to pay for the expert’s deposition time, which will often be in the range of $500/hr.  You often will come to the deposition with a check for just an hour or maybe two.  You don’t want to be rushed during the important parts because you let the expert talk about their grades in college for 20 minutes at the beginning.

2)  More importantly, you never know when an expert will be unavailable to attend trial.  Most young lawyers are used to having relatively open calendars.  Grizzled experts are exactly the opposite.  They clear deposition times, vacation, speaking engagements, and everything else months in advance.  When the date of trial starts skipping around as they invariably do, trial experts often will be unavailable to attend (particularly ones that are not local).  By letting the witness give us qualifications in deposition, you just permitted your opponent to have his deposition read into the record at trial, if the witness is indeed unavailable.  If you don’t qualify the witness, your opponent neglects to do so on cross-examination, and the expert does not attend trial, he is lost to your opponent (unless his testimony is somehow otherwised preserved on the eve of trial).

We will be back with a Pop Review tomorrow!  

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