Construction Expert Witness
Deposing the Opposing Party's Expert, Part 1
Michael G. Wales | Carpenter, Hazlewood, Delgado & Bolen, PLC
A party has the right to depose any expert designated by the opposing party. The right to depose does not equate, however, with the obligation to depose, so the first consideration that counsel must make is whether to depose a particular expert prior to trial. The costs of such a deposition (including projected expert fees) must be balanced against the advantage of knowing an expert’s position prior to him or her taking the stand. This decision can be influenced by whether the expert in question has produced a detailed report (thereby reducing the threat of surprise), and by whether the expert is designated on an “unimportant” topic, or in an area where the parties are in substantial agreement. In some cases, it might not be worth the time or effort to depose a particular expert, but such a decision should be made with caution. Nothing prevents an expert from going beyond the subject matter of the report, or modifying (or even contradicting) the “preliminary” opinions contained the report. Therefore, in my opinion, deposing the opponent’s experts should be the general rule.
II. PREPARATION IS KEY
A. Investigating the Expert Witness's Background
Knowing your witness is just as important when it is an expert you are deposing as when you are deposing a lay witness. A careful examination of an expert witness’s background may reveal biases; contradictory positions; that the “expert” does not have an adequate education, training or experience to qualify as an expert; and/or that the expert has claimed to have expert expertise in too many things to be credible, and, in fact, is likely an expert in nothing at all. Having a commanding knowledge of an expert’s background may even allow you to catch an expert in an outright lie, such as a false claim that he or she attained a certain certification or degree that, in fact, was never obtained.
The most logical place to start your investigation is to obtain and review a copy of the expert’s CV. From this document, you should be able to learn whether the expert is primarily worked in government, the private sector, or a particular industry. This document should also list the individual’s publication history. This document may also contain a list of the recent cases in which the individual has provided testimony as an expert. In federal court the report of an expert must list all publications authored by the expert in the last 10 years, as well as list all other cases in which he or she has testified and as an expert at trial or by deposition within the last four years.
Once you have a list of the expert’s publications, scan each article or material that may be pertinent to your case. In reviewing these publications, you may find the expert as previously endorsed a report or treatise that is damaging to your opponent. You may then try and get the expert to concede that an authority very helpful to your case is respected: likely securing its admission at trial under the learned treatise hearsay exception. You should also research whether the expert maintains any sort of online blog or column.
An attorney preparing for an expert deposition should compile information about the expert from the following sources as a minimum:
a. The expert’s report;
b. Relevant prior testimony;
d. Awards and recognitions;
e. Articles and publications;
f. Internet information;
g. Professional licenses/certifications;
h. Professional associations; and
i. Other information learned from other attorneys
B. Use Jury Instructions to Plan Your Questioning
One of your objectives for the deposition will likely be to obtain testimony supporting or opposing a motion for summary judgment. Be sure that you look at the elements of each cause of action you intend to prove or disprove – the last thing you would want to do is forget an element of a multi-element cause of action. Reviewing the elements will also help you raise questions so that the track with the language of the pertinent jury instructions for the relevant causes of action.
III. THE DEPOSITION NOTICE AND EXPERT DOCUMENT REQUEST
Nothing in requires that one party has “priority” over the other in regard to the deposition of experts. Common sense, professional courtesy and recognition of calendar conflicts should control.
To effectively depose an expert, an attorney needs access to that expert’s file and every document that he or she has relied upon to formulate his or her opinions. Furthermore, it is important to gather any and all information that could demonstrate to the jury that the expert is biased in favor of the party that has retained him or her. Typically, there is no discovery mechanism for the production of the expert’s complete file and billing records. Most discovery rules typically cover only “discoverable reports and writings”, which seems to indicate expert work product, and therefore compels the production of a much narrower category of documents than is needed. In fact, some experts do not prepare written reports at all. Therefore, a subpoena is required to get all the expert’s files on the matter. An alternate approach is to stipulate with opposing counsel that experts will voluntarily comply with a notice to produce and bring requested documents to the deposition (or to produce them on some mutually agreed upon date before the deposition) without the necessity of a subpoena.
Whether by subpoena, a request for production attached to the deposition notice, or by stipulation you should request the following documents:
1. Any and all reports, notes, memos, work sheets, and supporting data utilized in conjunction with the formulation of deponent’s opinion in this case and/or reviewed by him or her in investigating and reviewing this case;
2. Any and all writings or recordings which reflect any of deponent’s opinions in regard to this case;
3. Any and all correspondence in regard to this matter including, but not limited to, any correspondence to or from the hiring attorney and his or her firm;
4. Any and all business records which reflect time and effort on this matter, including but not limited to, invoices, hourly or daily charges, time sheets and ledgers;
5. If deponent has reviewed outside source material such as books or articles or other written materials which pertain to the subject matter of this litigation and relates to his or her investigation in this matter, then he or she is hereby requested to produce such material;
6. Any and all diagrams, sketches or demonstrative illustrations that the expert has created or relied upon in working on this matter, whether in draft or final form.
7. Any all video animations or visual recreations illustrating or pertaining to any of the expert’s opinions pertaining to this matter.
8. The deponent’s complete “file”.
It is important to note that a major revision of Rule 26 of the Federal Rules of Civil Procedure governing expert witness discovery went into effect on December 1, 2010. As a result of these changes, Rule 26 no longer allows discovery of draft expert reports or broad disclosure of communications between attorneys and expert witnesses, as had been the case since 1993. Instead, draft expert reports and communications between counsel and expert witness are now protected by the work–product doctrine. While prohibiting discovery of draft expert reports and significantly limiting discovery of Attorney–Expert communications, Rule 26 continues to require full disclosure of the expert’s opinions and the facts and/or data used to support them. Rule 26(b)(4)(B) now provides that draft expert reports are protected from discovery. Rule 26(b)(4)(C) confers work–product protection on communications between attorneys and retained experts except to the extent that the communications: (a) relate to the compensation for the expert’s study or testimony; (b) identify facts or data that the party’s attorney provided to the expert and that the expert considered informing the opinions to be expressed; or (c) identify assumptions at the party’s attorney provided to the experts in the expert relied on informing the opinions to be expressed. These protections afforded by the new rules to draft reports and Attorney–Expert communications apply not only to document production, but extend to “all forms of discovery,” including depositions. Finally, regarding experts who have not prepared reports, the 2010 amendment to Rule 26(a)(2)(C) mandates counsel prepare disclosures for non—reporting experts that must include: “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.
IV. DEPOSITION GOALS
When preparing your outline for the deposition of the opposing expert, it is helpful to keep in mind what you want to accomplish. The objectives of a taking an expert’s deposition include:
1. Discovering the expert’s trial conclusions, the basis for them, learning about all work performed by the expert, and discovering evidence that may impeach the expert at trial;
2. Locking the expert in to his or her positions;
3. Looking for areas where the adverse expert agrees with your expert;
4. Cornering the adverse expert into unreasonable positions where he or she refuses to agree with your expert;
5. Securing admissions from the expert;
6. Testing the experts reaction to cross-examination; and
7. Setting yourself up for a visual cross-examination at trial.
The content of this article is intended to provide general information and as a guide to the subject matter only. Please contact an Advise & Consult, Inc. expert for advice on your specific circumstances.