Construction Expert Witness
Deposing the Opposing Party's Expert, Part 2
Michael G. Wales | Carpenter, Hazlewood, Delgado & Bolen, PLC
V. THE DEPOSITION CHECKLIST
With the above listed goals in mind, prepare a checklist for the majority of the expert depositions that you take. It should form the backbone of your deposition outline, to which you can add case specific questions and hypotheticals.
Keep in mind the most important question at an expert deposition is “Why?”. Ironically, “Why?” is the worst question to ask an opposing expert (or any adverse witness, for that matter) at trial, but an effective deposition prevents trial counsel from having to take that dangerous road in front of the trier of fact. That being said, here is a sample deposition checklist from my toolbox:
● General Background
- Place of residence, date of birth
● Academic Qualifications
- Probe the experts post secondary and graduate/doctoral qualifications, giving special emphasis to her academic background (or lack thereof) in the particular field in which she is proposed to testify
● Employment History
- Ask the expert about her employment history from high school to present, moving individually from one job to the next. For each position, including questioning’s concerning:
- the expert’s day-to-day job duties;
- the expert’s motivations in taking on certain employment positions;
- the reasons why the expert left a certain position;
- the impact of that position upon the experts view of your client directly or of businesses operating within your client’s industry;
- Ask whether the expert obtained any licenses or certifications. If so, ask whether these have been maintained.
● Expert Background and Retention
- Ask if the expert is ever acting as a witness in this type of case before, if so ask about the precise issues involved in her conclusions in the prior matter
- Ask how often the expert testifies on behalf of plaintiffs and on behalf of defendants;
- Ask about any presentations the expert is done and for whom;
- Ask the expert what opposing counsel told her about her job assignment;
- Ask the expert what documents opposing counsel has provided and what assumptions she was told she should take into account;
- Ask how long the experts spent performing tests and other work necessary to form opinions and whether limitations were placed on the scope of the experts work;
- Ask how much the expert is being paid;
- Ask if the expert plans to do any additional work before trial
● Continue your questioning with the date the expert first contacted on the case; when were materials received and when were opinions formed.
● The number of hours spent on the matter; the number of hours that the expert anticipates to spend in the future. Use the expert’s billing records to assess where the time was spent, and what was done by others in the office. Sometimes the testifying expert has had little contact with the file prior to deposition, and the bulk of the work was done by staff. On occasion, the staff member might have far more (or far less) expertise on the matters at issue than the “testifying” expert.
● Inquire the nature of the future work to be done, and ask why it was not done prior to the deposition.
● The expert’s fee, and how is it paid. Also inquire the percentage of expert’s income from litigation matters.
● The breadth of subjects upon which the expert renders “expert” testimony. Some experts are a “jack of all trades”, and can be attacked as such.
● The expert’s credentials, especially in regard to the opinions rendered in this matter. An expert may have great credentials, but little training in this particular area. For example, an economist may have impeccable academic credentials, but little or no experience in conducting a tax audit.
● Inquire into education, professional training and other life experiences that are relevant. Continuing education is important.
● Memberships in professional organizations. What do those organizations do and what do they require for membership.
● Seminars taught and papers written on the subject. Be sure to get copies of any articles in area written by this expert–they could be extraordinarily helpful as a potential source of impeachment.
● Advertising the expert has done and material on his or her website. In deposition, inquire whether the expert advertises his or her forensic services anywhere and whether he or she maintains a website.
● The expert’s propensity to testify primarily for one side or the other (for example, plaintiff or defendant, police officer or citizen, etc.).
● The expert’s history with the retaining attorney’s firm. Also, the history of the expert with the retaining lawyer, regardless of what firm he or she was employed with at the time, can provide useful information.
● The expert’s assignment when hired, and any changes or modifications thereto. The expert designation provides a good starting point of this discussion. It is helpful to determine whether the description given is accurate and complete, or whether material mis-characterizations and omissions occurred.
● What case-specific written materials were used, and for what purposes. For example, what depositions, written discovery, pleadings, exhibits, etc. were provided and studied? Also, was any attorney work product provided and studied?
● What outside documents were used and for what purposes.
● An opinion that contradicts the conclusion of a cited treatise can be very valuable at trial. Per Evidence Code section 721(b), any treatise that is “recognized as reliable in the field” can be used to cross-examine, whether the expert used it or not. If you believe such a situation exists, try to get the expert to state the treatise is reliable at deposition, and then cross-examine with the contradictory statements at trial.
● The subject areas upon which the expert intends to testify. The subject areas upon which the expert does not intend to testify. By limiting the subject matters of testimony, much time can be saved and surprises avoided (or limited) at trial. While it has been my experience that trial courts give ample “wiggle room” to experts to modify, or even contradict, their deposition testimony, they are much more likely to prevent an expert from opining on an area where they have previously stated that had no opinion.
● Any written report (or notes) on this matter, or other documentation of thoughts and conclusions. When they exist, written reports typically reflect the expert’s chief opinions and should be examined closely. If such a report exists, it is important that you ask the witness to
explicitly confirm his agreement with the findings and conclusions contained in the report. (This is an additional method of “pinning the witness down”.)
● Any persons interviewed or consulted on this matter.
● The opinions the experts has reached, and the bases for these opinions. For each particular case, prepare a list of the key topics in this expert’s area of expertise. Be as slow and laborious as necessary. For each topic you can use a set of standard simple questions as many times as necessary until the expert runs out of things to say.
- What was your assignment in this case?
- What are the areas about which you expect to testify?
- What opinion(s) do you hold in regard to that topic?
- Why do you hold that opinion?
- What material in your file supports that opinion?
- Did you rely on anything outside of your file as a basis for that opinion?
- What aspect of your education [or background or training] qualifies you to offer that opinion?
- Have you prepared (or will you prepare) any exhibits pertaining to this opinion?
- What is the significance of this document from your file?
- Is there any additional work that you intend to do before trial on this topic?
- Are there other areas pertaining to this matter that we haven’t discussed that you have prepared opinions on?
● Have the expert state which evidence supports which theory. In other words, “Why?”. If appropriate, determine if changed facts changes the opinion.
● Elicit information in order to allow you to assess the validity of the support for each opinion.
● Clarify the factual assumptions upon which the expert is relying. By “assumption”, I mean conclusions drawn from sources other than physical evidence and testing. For example, in a vehicle collision case, the experts’ opinion of the speed of a particular vehicle might be based solely on the statement of a party or witness. This is important to know if there is physical evidence or witness testimony that contradicts that assumption, and allows the deposing attorney to have the expert clarify that if the assumed testimony is shown to be false or inaccurate, his opinion is no longer valid.
● What areas of agreement, both factual and opinion, between opposing expert and your side’s
theory of the case. For example, a series of questions can be posed confirming that the expert agrees with certain core facts upon which your case also relies. For example, “You agree, Ms. Smith, that my client’s business’s annual profits were no less than $100,000 per year over the ten year period preceding the fire?”. By confirming this sort of facts, one both bolsters one’s own case (and experts) and prevents the expert from taking a contrary position at trial.
● Any experiments or recreations that were done, and for what purposes, and whether any planned in the future. Recreations and experiments being planned following the deposition are a real danger area and, in my opinion, justify a second deposition or blocking the post-deposition evidence from trial.
● Any exhibits or other demonstrative evidence prepared, or is being planned in the future for trial. If something elaborate is being planned but not yet prepared, such as an animated recreation, object on the record and preserve the right to examine the video, re-depose the witness on its contents and to lodge appropriate objections regarding admissibility at trial.
● Examine all the contents of the produced file to determine whether further inquiry is warranted. Often, copied articles, billing, phone messages, handwritten notes and/or intra-office memos can clarify, limit or undermine the expert’s “scripted” answers given in response to direct questioning. Insights and impeachment material may be gleaned from analyzing what was and was not reviewed prior to the deposition.
● At the conclusion of the deposition, inquire whether there are any other major areas of testimony that the expert has prepared for trial that has yet to be discussed.
● Inquire whether the expert has “any more opinions” relating to the litigation at hand. While this question typically elicits an objection and a response that “it depends on the questions asked”, the question does serve to limit somewhat the expert’s ability to expand his or her testimony by the time of trial. In response to any such objection or vague response, make it clear on the record that the deposition is your only opportunity to learn this person’s opinions, and that the purpose of the deposition is to prevent surprise 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.