The primary goal of an expert deposition is to uncover all the opinions that the expert will offer at trial. How to achieve that primary goal is the subject of this article. Below are procedures necessary to effectively prepare for and take expert depositions.
1. Acquainting Yourself With The Expert’s Area Of Expertise
Unlike party or witness depositions, expert depositions by definition require a basic comprehension of a particular field or science outside of the layperson’s common knowledge. Therefore, it is imperative that the attorney devote the time necessary to learn about the expert’s field as it relates to the opinions the expert will be offering at trial. This does not mean the attorney must have the same level of understanding of the field as the expert, but it does mean the attorney should know enough about the jargon and prevailing theories in the expert’s field to competently conduct the deposition.
Expert depositions are governed by Code of Civil Procedure section 2034.210 et seq., and the best place to start preparing for an expert deposition is to review the opposing party’s response to the Section 2034.210 demand. The response to a Section 2034.210 demand must include the general substance of the testimony the expert intends to offer at trial, and must be accompanied by an expert declaration signed by opposing counsel pursuant to section 2034.260. The declaration must contain “(1) A brief narrative statement of the qualifications of each expert. (2) A brief narrative statement of the general substance of the testimony that the expert is expected to give. (3) A representation that the expert has agreed to testify at the trial. (4) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial. (5) A statement of the expert’s hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney.” Code of Civil Procedure § 2034.260(c).
As is set forth in section 2034.260(c)(2) above, counsel must disclose the “general substance” of the testimony expected to be given. “[T]his means the party must disclose either in his witness exchange list or at his expert’s deposition, if the expert is asked, the substance of the facts and the opinions which the expert will testify to at trial. Only by such a disclosure will the opposing party have reasonable notice of the specific areas of investigation by the expert, the opinions he has reached and the reasons supporting the opinions, to the end the opposing party can prepare for cross-examination and rebuttal of the expert’s testimony. Only by such a disclosure will the possibility of a reasonable settlement of the case before trial be encouraged.” Kennemur v. State of California (1982) 133 Cal. App. 3d 907, 919 (decided under former Code of Civil Procedure § 2037.3).
After becoming familiar with the response to the Section 2034.210 demand and declaration, the attorney needs to perform research to develop a basic comprehension of the expert’s field and the terminology likely to be used. Narrowly targeted online research using word searches may not always be the best way to get an overview of an unfamiliar field – sometimes skimming the table of contents and index of treatises is a good idea before “drilling down” to specific subjects the expert is expected to cover.
The attorney should also consult with the defense expert relative to the opinions that will be offered by the defense. Likely, the defense expert will have prepared a report prior to the plaintiff’s expert’s deposition, and the defense expert will be able to go through the plaintiff’s expert’s report with the attorney to point out any inconsistencies or address areas that need clarification.
2. Determining The Expert’s Individual Background.
Once the attorney has a basic understanding of the expert’s area of expertise, additional research should be done into the expert’s individual background. For instance, the attorney should do some research into the expert’s firm, if any, the expert’s educational and vocational background, and the expert’s work history. Deposing an expert who has been in the field many years versus a more academic expert may yield different results, as the experts may have different approaches to the same factual pattern, and a different understanding of the litigation process.
The attorney should be fully aware if he is dealing with an academic or an experienced litigation expert.
3. Utilizing The ASCDC Expert Deposition Database To Prepare For Deposition
Perhaps one of the most significant benefits that the ASCDC provides to its members is the Expert Deposition Database – www. ascdc.org/Experts.asp. The Database (which can also be accessed under the “member services” tab of the main web page at www. ascdc.org) provides members with the ability to review hundreds of deposition transcripts that have been uploaded to the database.
ASCDC has for many years collected and organizing expert witness depositions from our Board members and member firms, which enables members to have expert specific insight that otherwise could only be gained through experience.
Additionally, the database enables attorneys to determine if the expert is generally plaintiff friendly, or if the expert has consulted with both the plaintiff and defense bar. Certainly, this must be elicited during the deposition, but the Database provides some insight into this before the deposition which otherwise would not be known. (Of course, the Database is a great resource for attorneys looking to retain a good expert as well –this is the place to check out how they hold up under questioning.)
4. Examining The Expert
To reiterate, the primary goal of an expert deposition is to fully uncover all of the opinions, which the expert will be presenting at trial. The concern should not be trying to outwit the expert or to get the expert to subscribe to a particular fact pattern. This is not a party or percipient witness deposition during which you are seeking to elicit certain fact statements. Instead, you are seeking to understand all of the expert’s opinions so that you will not be surprised at trial, and so that your expert will be prepared to refute them at trial. After all, in all likelihood you will have a similarly skilled expert on the defense that will endeavor to refute all of the opinions of the Plaintiff’s expert.
Once sufficient preparation and understanding of the expert’s field has been achieved, you are ready to examine the witness. Below is a checklist of topics and questions that should be followed in every expert deposition:
1. Relationship of the expert with the opposing counsel and fees
Before getting into the substance of the expert’s testimony, it is important to ask the expert about his relationship with opposing counsel and counsel’s firm, and the fees the expert is receiving. The examining attorney should have a full understanding of the expert’s history as an expert in litigation, the amount of income the expert receives from litigation work, and whether the expert tends to represent plaintiffs or defendants. The following topics should be addressed, as they may have a bearing on showing the jury that the opposing expert lacks objectivity:
a. What percentage of cases has the expert handled on the plaintiff’s side?
b. How many years has the expert worked with plaintiff’s counsel?
c. How many clients has the plaintiff’s attorney referred to the expert in the last year?
d. What are the expert’s fees? e. What is the expert’s income from litigation work and what percentage of the expert’s total income is from litigation?
f. How much has the expert been paid by plaintiff’s counsel this year and in years prior?
g. Does the expert ever handle cases on a lien?
h. If the expert does handle cases on a lien, what percentage of the lien does the expert customarily write off?
i. Has the expert ever not required satisfaction of the lien if the case has been dismissed or resulted in a defense verdict?
2. Relationship of expert to Plaintiff
After determining the expert’s relationship to counsel and testimony trends, it is important to determine the relationship between the expert and the plaintiff. The following topics should be addressed:
a. How was the expert first connected with the plaintiff?
b. Has the expert been retained by the plaintiff in the past in any capacity?
c. How much time did the expert spend with the plaintiff prior to retention?
d. How much time did the expert spend with the plaintiff after retention?
3. Expert’s history of testifying in depositions and trials
It is important to know whether or not the expert is experienced in providing testimony. This can be derived from determining the percentage of the expert’s total income received from testimony, as set forth above. However, for a full understanding of the expert’s history, the following topics should be addressed:
a. How many times has the expert testified in depositions or trials?
b. Does the expert recall the case names of the matters he has testified in recently?
c. Has the expert ever testified in federal court? *Note that this article is based on taking expert depositions in state court. Federal Rules of Civil Procedure, Rule 26 governs expert testimony and discovery in federal court. Understanding Rule 26 is essential when your case is in federal court. It is important to note that Rule 26 was amended in 2010, making changes to the old 1993 Rule. The new Rule (a) forbids the discovery of draft expert reports [Rule26(b)(4)(B)], (b) allows discovery of certain communications with counsel [Rule 26(b)(4)(C)], and (c) requires experts only to disclose “ facts or data” utilized in forming opinions [Rule 26(a)(2)(B)(ii)].
d. What percentage of the expert’s testimony given in state versus federal court?
e. How many times has the expert testified for the plaintiff versus defense?
4. What documents did the expert review / rely upon?
The expert’s opinions and conclusions will be based on documents and data the expert has reviewed. Therefore, it is important that the expert fully disclose everything that was reviewed or relied upon to form the expert’s opinion.
a. Make sure to go through the entire file of the expert at the deposition, page by page, and ask the expert to describe its contents.
b. Ask the expert for any digital information.
c. Once you have completed going through each document, ask the expert if they reviewed absolutely anything else, and if they plan to do so.
d. Do the documents confirm the plaintiff’s theory of the case?
5. Going through the expert report and eliciting all of the expert’s opinions
The most important part of the expert deposition is eliciting all of the opinions that the expert intends to offer at trial. It is crucial to go through the entire report prepared by the expert with the expert during the deposition to ensure that all opinions of the expert have been discussed. The report itself is the guideline for eliciting the expert’s opinions and properly conducting the deposition. When going through the report with the expert, the following should be addressed:
a. When did the expert prepare the report?
b. How many drafts of the report were made prior to the final report?
c. Does the expert intend to supplement the report prior to trial?
e. Does report contain all of the expert’s opinions?
6. Ensuring that all opinions have been discussed
Once your questioning of the expert has been concluded, it is important to make sure to ask the expert two questions in closing:
(1) Have we reviewed all materials that you have relied upon to form your opinions?
(2) Have we discussed all of the opinions that you intend or expect to offer at trial?
Asking these questions provides a safeguard so that no new materials or opinions are presented at trial. It is possible that you have either overlooked an area or that the expert has forgotten to mention materials reviewed or an opinion formed. If the expert provides you with something new after you have asked these questions, it is important to ask the questions yet again once that subject has been fully discussed.
A properly taken expert deposition will allow the deposing attorney to be fully prepared to examine the expert at trial. There should be absolutely no opinion that the expert offers in trial that was not discussed in the expert’s deposition. If the above guidelines are followed, and all opinions of the expert and the basis of those opinions are fully explored, the deposition will be successful and attorney can rest confident that the defense will be fully prepared for the expert at trial