Deposing the Opposing Expert Witness

Taking the Deposition

Deposing the Opposing Expert Witness

Getting What You Need From The Deposition Getting And Reviewing The Expert's File Daubert Examination Tips For Deposing The Difficult Witness Setting Up The Expert For Trial Cross-

Examination Laying The Groundwork For Impeachment At Trial Using Opposing Expert Depositions In CourtProceedings

Deposing the Opposing Expert Witness

Getting What You Need From The Deposition Getting And Reviewing The Expert's File Daubert Examination Tips For Deposing The Difficult Witness Setting Up The Expert For Trial Cross-

Examination Laying The Groundwork For Impeachment At

Trial Using Opposing Expert Depositions In Court

Proceedings

Getting What You Need From the Deposition

Creating an outlineFigure out what will work for youOne suggestion: Checklist outlineI use different color pens.

The different colors don’t have to mean anything in particular. Just make sure that one will catch your attention.

Go back to your outline frequently.

Psychology of Expert Witnesses

Many people try to divide experts up into types.

I don’t find that particularly useful, but if it works for you, try it.

Remember that the personality that experts show in deposition is frequently very different from the personality they show at trial.

Expert Witness Manuals

I’ve read a few of these. I’ve cited some in the manual.

Add to the list: The Biggest Mistakes Expert Witnesses Make and How to Avoid Them, by Steven Babitsky and James J. Mangraviti, Jr.

Clues that you may be onto something

Odd turn of phrase Strange wording may be a sign of an expert

wanting to say something that is literally true but at the same time avoiding telling you what you want to know.

Unresponsive answers. You ask a question and get a dissertation on something you didn’t ask.

Refusal to concede the obvious. Convoluted answer designed to avoid creating a

“sound bite.”

Interference by Defense Counsel

The rules limit what a lawyer defending a deposition can do.

Hall v. Clifton Precision, 150 FRD 525 (E.D. Pa. 1993) (manual p. 78)

Objection to formSpeaking objectionsInstructions not to answer

Objection to form

The most frequent grounds for objecting to the form of a question are: (1)the question is too broad or calls for an excessive narrative answer, (2) the question is compound, (3) the question has been asked and responsively and completely answered (see Guideline 5(d)), (4) the question calls for conjecture, speculation or judgment of veracity, (5) the question is ambiguous, imprecise, unintelligible or calls for a vague answer, (6) the question is argumentative, abusive or contains improper characterization, (7) the question assumes as true facts in dispute or not in evidence, (8) the question misquotes a witness, earlier testimony, (9) the question calls for an opinion from a witness not qualified to give one, and (10) the question is leading under circumstances where leading questions would not be permitted by Fed R. Evid 611(c).1 Michael H. Graham, Handbook of Federal Evidence H 611.15- 611.22 (4th ed.1996) (as to numbers 1-8 above). Boyd v. Univ. of Md. Med. Sys., 173 F.R.D. 143, 147, n.8 (D. Md.

1997).

Speaking Objection

"Speaking objections" are objections in which the lawyer effectively tells the witness what he would like to hear.

"Any objection during a deposition must be stated concisely and in a nonargumentative and non-suggestive manner.“ Ark. R. Civ. P. 30 (d)(1);Fed. R. Civ. P. 30(c)(2).

Getting and reviewing the expert’s file

Try to get it ahead of time if possibleRealistically, it is often not possible.If you have to review it at the deposition,

take your time and do it.

Federal Rules

What expert has to prepare a report?Treating physician

You would think not, but it’s not as easy as you might think. Smith v. Bankers Live and Casualty,

2008 WL 2845080 (S.D. Iowa)Most traditional expert witnesses will have

to provide a report

Timing of disclosures.

This can be a trap.There’s a built in deadline in the rule,

regardless of the scheduling order.Church v. Annett Holdings, Inc., 2008

WL 942006 (E.D.Ark)

How much goes into a report?

There is a lot of variation in practice.To do an unscientific survey, I looked at

recent Arkansas Federal District Court cases in which some kind of issue or another involving expert witness reports came up, went to the website, and downloaded available reports. They ranged from a few to hundreds of pages.

“Draft-Dodging”

Easton, Stephen D; Romines, . "Dealing with draft dodgers: Automatic production of drafts of expert witness reports." The Review of Litigation. University of Texas at Austin - School of Law Publications, Inc. 2003.

Draft Dodging

“One way to attack an expert's credibility is to demonstrate that her original opinion "developed" over time as she interacted with the attorney who employed her.47 This does not necessarily imply that the attorney impermissibly shaped expert testimony. Instead it reflects the reality that the expert's more independent, original opinion might present something closer to unvarnished reality (permeated with both favorable and unfavorable aspects) than an opinion developed over the course of preparation for trial, when greater emphasis is placed on those elements of an expert's opinion that are helpful to the party calling the witness. “

Draft Dodging

Nothing in the Federal Rules of Civil Procedure prohibits an attorney from assisting her expert in the development of her testimony. In fact, a clear presentation of the evidence to the fact finder may require attorney assistance.48 At the same time, given the expert's status, the degree of the attorney's influence upon her testimony is relevant to the reliability of such testimony.

Draft Dodging

“[C]ourts have nearly uniformly required production of an expert's own drafts of reports69 and her notes and other memoranda.

Courts have pointed to three primary justifications for requiring production of experts' preliminary drafts.75 The first is the recognition that such information is vital to cross-examination.76 The second is the acknowledgment that, when an attorney willingly shares sensitive information with third parties, the core precepts of the work product privilege are no longer implicated.77 Finally, courts have cited the benefits of having a bright-line rule regarding the issue to minimize the time and expense wasted on discovery battles.78

Draft dodging

A court that decides to require production of draft expert reports faces an obvious follow-up inquiry: What is a "draft"? If the fact finder is to have a reasonable picture of the development of expert testimony, courts must interpret the term "draft" expansively.

The key event for analyzing what constitutes a "draft" is the transmission of a version of a report between an expert and the retaining attorney176 (or another person) or a communication potentially affecting the report by the retaining attorney (or any person other than the expert177).

Draft Dodging—Conclusion

CONCLUSION Jurors in expert-dominated civil trials are faced with a difficult task. Often

they must decide which of two or more opposing experts is correct after hearing them testify to directly (or at least radically) opposing opinions on the critical issues in the case. Furthermore, they must make this decision based upon the information presented to them at the trial.

There are many potentially valuable categories of data that could help jurors reach the correct decision. One such category of data is information about the influence of an expert's employer on "the expert's" testimony. If jurors are to receive and benefit from the disclosure of this information at trial, it will be through a cross-examination of the expert that is based upon disclosure of information about the retaining attorney's influence on the expert.202

One source of such information is the drafts exchanged between experts and their employers. A wise trial attorney will fight to obtain these drafts. Because disclosure of expert drafts has the potential to assist the truth-seeking process, courts should support that fight or, better yet, render it unnecessary by mandating automatic production of all drafts.

Ghostwriting

How much can a lawyer be involved in the drafting of a report?

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

Ghost writing a testifying expert's report is the preparation of the substance writing of the report by someone other than the expert purporting to have written it.

Unquestionably, Rule 26 requires an expert witness to prepare his own Rule 26 Report. The Advisory Committee Notes accompanying this rule clarify the intended meaning of the phrase "prepared and signed by the witness", explaining that a report can be "prepared" by an expert witness even if counsel has aided the witness in preparing an expert's report.

Ghostwriting

Specifically, the Advisory Committee Notes provide that: [HN31] Rule 26(a)(2)(B) does not preclude

counsel from providing assistance to experts in preparing the reports, and indeed, with experts such as automobile mechanics, this assistance may be needed. Nevertheless, the report, which is intended to set forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given by the witness and it must be signed by the witness.

Ghostwriting

Rule 26, Advisory Committee Notes; see also 8 Charles A. Wright & Richard L. Miller, Federal Practice and Procedure: Civ.2d § 2031.1 (2nd ed. 1994 & Supp. 1999) (the Advisory Committee Notes to Rule 26 indicate that "it is expected that counsel may assist some witnesses" in preparing their reports). Though the Advisory Committee Notes offer some guidance, uncertainty remains as to acceptable level of involvement that counsel or others may have in the preparation of the expert report.

Daubert Examination

There is no such thing as a generic Daubert case.

Look for holes in methodology. Look for lack of reliability. Look for unorthodox uses of orthodox

scientific procedures.

Daubert

The goal is for the judge to see to it that the testimony is relevant and reliable.

Daubert is not just a defendant’s tool. It can be effectively used by plaintiffs as well.

Traditional Daubert Factors

Can it be tested?Has it been subjected to peer review and

publication?What is the known or potential rate of

error?Is the principle generally accepted in the

scientific community?

Nonexclusive

The factors first identified in Daubert are not the only factors. More have developed with the case law.

The Daubert inquiry is a flexible one, and should focus on the principles and methodology the expert uses and not on the conclusions the expert reaches

The qualifications of the witness and reliability of the expert testimony are really two separate questions.

Hypothetical # 1. Marijuana and Cerebral Palsy

Tobacco smoking is associated with cerebral palsy and can be a contributing factor to causation to cerebral palsy.

There is, however, no scientific evidence that marijuana smoking is associated with cerebral palsy

Experts admitted that marijuana smoke is an entirely different chemical compound than tobacco smoke

Hypothetical #1 Marijuana/ CP

One expert presumed that marijuana was ordinarily mixed with tobacco.

There was an issue with association between marijuana use and meconium staining, but the literature showed: “Initial reports suggested an increased frequency of

meconium-stained amniotic fluid and precipitate labor in heavy marijuana users, but these results have not been reproducible.”

there is considerable difficulty in attributing a cause-and-effect relationship to marijuana and observed pregnancy outcomes and neonatal behavior.

Result

Trial judge excluded opinions that the infant’s cerebral palsy was caused by mother’s smoking marijuana.

This made the mother’s marijuana use irrelevant.

Result

We lost at trial anyway.

Hypothetical No. 2 Handprinting

One of the “hot issues” in document examination has been whether handwriting analysis on handprinting is sufficiently reliable to pass Daubert muster

There was some question, and indeed some cases excluded it

The FBI got some experts in the field to go through old data and evaluate whether experts were able to identify writers based on handprinting

Handprinting

According to the study, they were, but . . There are some irregularities.For one, the original data has not been

released.For another, we’re not sure exactly what

they were calling “handprinting.”

The Difficult Witness

The case in your handbook is one of the best examples I’ve seen. Again, sorry about the formatting problems.

What can you do? Be unfailingly, even absurdly, polite, professional, and patient. Make believe your highlyeducated expert realy does have difficulty

understanding plain English. Break it down. Repeat questions when necessary. Object politely to non-responsive answers and ask again. If the witness goes off on a long rambling narrative, listen politely.

Then ask whether the witness recalls what the question was. In the event the expert can recall the question, ask what the narrative

had to do with the question. When possible, ask leading questions. These may draw objections

to form, but they will get you back on track.

Evasive Testimony

Setting Up the Expert for Trial Cross-Examination

Make a clean record Make sure the witness understands the

question Discourage nonverbal or incomplete answers Confirm confusing testimony Listen to long narrative answers and break

them down If the witness tries to intimidate you or ridicule

you in any way, make a record of it

Laying the Groundwork for Impeachment at Trial

Explore the witness’s qualifications as to the issue at hand.

Pin him or her down on the source of knowledge of the critical facts.

Get a commitment as to what evidence and information the expert relied on.

When did the expert solidify his or her opinion. Explore the expert’s assumptions.

Using Opposing Expert Depositions in Court Proceedings

Try to get “sound bite” quotes that will make your point for your motion.Q Well, it may be, but we're kind of in the

range of speculation here.A Absolutely

Attach Relevant Excerpts to Motion

Attach relevant excerpts to the motion. I usually list out the excerpts.

I usually include enough of the introductory material necessary to identify the expert. Some people don’t do this. As an appellate lawyer, I find this very useful in getting a complete record to the appellate court.