Little Rock, Arkansas

December 5, 2008

Preparing for the Depositionof the Opposing Expert Witness

Determining Your Goals For The Deposition Careful Examination About Background Information Establishing Credentials And Credibility- Gathering Information For Daubert Challenges Recall And Conversations Going After Admissions During Deposition Exhibits During Deposition Making And Dealing With Objections Specialized Challenges For Deposing Scientific, Technical, Or Other Specialized Experts

Preparing for the Deposition of the Opposing Expert Witness

Determining your goals for the depositionWhat is this expert’s role in this case?Why did the opposing counsel pick this

expert?What does this expert add to the opposing

counsel’s case?Narrow down the expert’s anticipated role.

Burden of Proof issues

Is the opposing expert testifying about a topic on which your opponent has the burden of proof?

Is the opposing expert primarily going to be challenging what your expert is saying? If so, the real goal will be to figure out what

criticisms there are.

Understanding the issues

This can be difficult, and requires a lot of work.We usually don’t have the educational

background.We have to rely on our experts.Still, it’s important to read materials.

BooksJournals/Magazines Internet sites (increasingly important)

Research on technical issues

Many sciences aren’t as easy to research as law is. There’s frequently no Westlaw or Lexis

Your expert will have to help, of courseBut there’s no reason not to try it on your

own as well.Some resources on the Internet are very

useful.

Google

Traditional Google is great.

Google Scholar and Google Books can be very useful.

Google Scholar

Google scholar usually just leads you to abstracts.But occasionally there will be multiple

versions of the article. One of those versions may be a copy that one of the authors has posted on his or her website.

Sometimes the article is posted on the Internet.

Google Scholar

In one case an expert said that a phrase used by another expert wasn’t really a term of art in the field, more or less accusing the other expert of making the term up.

The term wasn’t actually in the medical dictionary.

I searched the term in Google scholar and found enough uses of the term in context to challenge that characterization.

Google Books

Google Books has been a matter of controversy because of allegations that it violates copyright.

It allows you to see various parts of some books.

There is often enough to tell you if you want to order the book.

With enough advance time, interlibrary loan is available.

Google Books

Google Books makes research from the desktop much easier than before.

Questia

Questia is occasionally useful. It is an online library mostly designed to help college students write papers, but every once in a while it has information useful to lawyers or experts.

Others

www.highbeam.com Mostly newspapers and magazines, but some

journals that can be useful www.mywire.com

Primarily publications. I have occasionally found background information there that is useful.

Scientific American Digital www.sciamdigital.com Mostly useful for understanding issues. Not really a

reference to use for challenging expert opinions. But if you happen to find something on point, it’s great.

Modern Scientific Evidence

Modern Scientific Evidence: The Law and Science of Expert Testimony, David L Faigman, Michael J. Saks, Joseph Sanders, Edward K Cheng (Thompson West 2007)

If they happen to cover your topic, there will be references to scientific as well as legal materials on it.

Hypothetical

There are excerpts from a brief on page 89 of your materials.

I apologize for the typographical problem.

Mother goes to the hospital. There is a delay in delivery. Child is born with severe cerebral palsy.

Mother has smoked marijuana while the child is in utero.

Hypothetical

The question was whether exposure to marijuana could have caused cerebral palsy.

We moved in limine to exclude evidence of marijuana use, as there was no evidence of causation.

That required reading, studying, and presenting the judge with literature.

Hypothetical

Before the deposition, not only consult with experts, but actually read the published materials

Hypothetical

In preparing for the deposition, it is important to have copies of the relevant scientific studies available to confront the experts if necessary.

It can also be useful to have copies of books. Today with Amazon.com and similar sources, you can find used copies of books. In an appropriate case, spring for a new copy.

Get background information

C.V. is a good starting point.Some areas of expertise are more

traditional than others. Orthopedic surgeon. The history is going to

be predictable.Demonstrations, this afternoon

Document examinerLife care planner

Publications on CV

Read the publications if available, especially if they have something to do with the topic at hand

That has gotten easier with the Internet.

Teaching

Find out about teaching David Tirella http://

tirellaconsulting.com/home.html Article about selecting expert witnesses

recommends four “p’s” Practitioner Published Professor Presentation

Of course he left out the fifth “p” about such an expert—”pricey”.

Professor

Every expert is going to have to be a professor.

In deposition, however, the expert’s demeanor is going to be completely different.

Try to figure out how the expert will explain his position to the jury.

Employment

Find out about the expert’s day job.How much time does the expert spend

as an expert?How much time does the expert spend

as an actual practitionerThis will vary somewhat based on the

nature of the expertise. Forensic experts are frequently full time

experts.

Ever been a party to a lawsuit

Plaintiff or defendantExplore what happenedWho represented the expert?Did this have anything to do with the

expert becoming an expert witness?You can’t ask it like that. You have to be

creative.

Previous depositions

Best if you can get them before the deposition.

Still useful for trial. Find out what you can.

Federal Rules

Federal expert reports are great sources for informationwritten reportprepared and signed by the witness

if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony

Expert report, continuedThe report must contain

the data or other information considered by the witness in forming them;

any exhibits that will be used to summarize or support them;

the witness's qualifications, including a list of all publications authored in the

previous 10 years;a complete statement of all opinions the witness

will express and the basis and reasons for them;

Expert report, continuedThe report must contain, continued

a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

a statement of the compensation to be paid for the study and testimony in the case.

Previous experience as an expert

Plaintiff or defense expert?Member of organizations associated with

one side or the other?Self imposed restrictions on testimony?Lawyers the expert has worked with in

the past?

Involvement in this case

How did the expert get his information about the case? Did it all come from the lawyer? Did the lawyer recommend any other sources? Did the expert do any independent research? Did the lawyer ever talk to the client or any of the other

witnesses? Did the expert rely on any information orally relayed to the

expert? If so, what was it? Did the expert make any notes of it? Get copies of all written

information provided from whatever source. Get copies of all notes taken by the expert.

Drafts of reports

"PLEASE HAVE RETYPED ON YOUR OWN STATIONARY [sic]. THANK YOU.“See Stephen D. Easton, "Dealing with Draft

Dodgers: Automatic Production of Drafts of Expert Witness Reports," 22 Rev.Litig. 355, 358 (2003)

See Trigon Ins. Co. v. United States, 204 F.R.D. 277, 291-96 (E.D.Va. 2001)

Expert compensation

Get the details of this. Billing recordsPaid yet?To be paid?Billing practices?Percentage of income from expert

witness work?

Preliminary opinions

This will vary a lot depending on the kind of expert and the nature of the case.

Rarely will you get the preliminary opinion that is different from the final opinion, and when you do there’ll be a good explanation. But it doesn’t hurt to look.

An opinion that comes too early can be useful.

Work the expert did on the case

Did the expert simply read the materials forwarded and formulate an opinion?

Did she or he do any additional research? Was there any actual experimentation necessary? If so, was it done? In this regard, did the expert have sufficient time, resources, and

information to render a satisfactory opinion? Did the expert need anything else to formulate an opinion? Is the expert finished? Does he or she plan to do any additional work in the future? Will he or she agree to let the lawyer know if any additional work

is necessary, or is done? Are there any facts that are as yet unclear? Would the expert's opinion change based on the resolution of the

unclear facts?

Explore the expert’s understanding of the facts

See what the expert believes the facts are? Did the expert resolve disputed or questioned

facts? Witnesses differ, for example, what if one witness

was right and the other wrong, would opinion change?

What if the facts were different? Hypotheticals, would facts change?

Try not to lead too much here. Let the expert tell you what he or she understands the facts to be.

The expert's final opinions

You want to know all of the expert's opinions.

The expert doesn't want to just come out and tell you.

You will have to get it out of the expert, and it may take some time and effort.

Legal terminology

“Reasonable degree of medical certainty,” “probable,” “possible” The use of the terms "probable" and "possible" as a basis for

test of qualification or lack of qualification in respect to a medical opinion has frequently converted this aspect of a trial into a mere semantic ritual or hassle. The courts have come to recognize that the competency of a doctor's testimony cannot soundly be permitted to turn on a mechanical rule of law as to which of the two terms he has employed. Regardless of which term he may have used, if his testimony is such in nature and basis of hypothesis as to judicially impress that the opinion expressed represents his professional judgment as to the most likely one among the possible causes of the physical condition involved, the court isentitled to admit the opinion and leave its weight to the jury.

Preparing for Daubert Challenges

Will the testimony be helpful to the factfinder? Rule 104. Is the reasoning or methodology scientifically valid? Is the methodology properly applied to the facts of this case? (Does it fit?) Has the scientific theory been tested? Can it be tested? Does the scientist use the same level of intellectual rigor in the

courtroom that he or she uses in the laboratory? Has the theory been subjected to peer review? Is there a known rate of error? Is there a potential rate of error? General acceptance in the scientific community?

Recall and Conversations with Counsel

This can be a very difficult area because it’s entirely in the control of the expert.

Still, It’s worth exploring and seeing what you can get.

Going After Admissions During Deposition

There are some points in your favor that a reasonable expert is going to be forced to admit.

Get a standard textbook and read uncontroversial passages to the doctor and ask if he agrees with them.

The “Authoritative” issue.

“Authoritative”

"Refrain from stating that any single article or text is authoritative within neuropsychology; otherwise, you will be viewed as having relied explicitly on the document to formulate opinions, and the opposing counsel may use any part of the document to impeach your credibility." Hans O . Doerr, Albert S. Carlin, Eds Forensic

Neuropsychology "The Discovery Process: Deposition, Trial Testimony, and Hearing Testimony, G. Andrew H. Benjamin and Alfred Kaszniak, p. 23 (1991).

Authoritative

Dan Poynter, Expert Witness Handbook: Tips and Techniques for the Litigation Consultant (2005), recommends: Q: Have you read Professor Gamble's book? A: Yes. Q. Do you consider it authoritative? A. Some of it. Please read me the part you want me

to agree with and I will tell you if I do. P. 109.

Authoritative

"Expert witnesses may not quote passages from someone else's book, journal article, or other tome. They may, however base their opinions on standard authoritative texts. If you referred to or considered a passage from a book, you can be cross-examined on the entire text. Do not admit the book is authoritative." p. 161.

Exhibits

Identify documents you think you’ll needPut each one in a separate folderPut an exhibit sticker on it, but do not

number itMake enough copies. Figure out how

many you’ll need and make a couple more.

Making and Dealing With Objections

Make sure the witness understands the role of the lawyer. The lawyer is not the judge.

Because the rules have become rather strict, objections are fairly limited.

Objections to form

1. An inaccurate summary or quote of prior testimony. 2. Assuming facts not in evidence or without

foundation. 3. Posing a hypothetical with no factual basis 4. Argumentative question. 5. Question used to "bully" the witness. 6. Question calling for narrative answer. 7. Leading questions 8. Multi-part, convoluted or "compound" questions; 9. "unintelligible" questions

Specialized Challenges

Specialized Challenges for Deposing Scientific, Technical, or Other Specialized ExpertsEver issued reports? Identify all information relied on by the

expert.Anything you review did you did not rely

on or that you felt was unreliable for any reason.

Specialized challenges Any written notes? Any sticky tabs? Any yellow

highlights? Identify all opinions. Get basis for opinions. Go for underlying bases for opinions. Did you rely on any treatises or authoritative

publications in forming your opinions in this case?

Should you have? Are there any standard treatises in this field? Why did you not avail yourself of information?

Specialized ChallengesAre you aware of any videotapes or

recorded information that may not have been transcribed?

Have you reviewed any deposition or report of any other expert witness?