Construction Expert Witness
Deposing the Opposing Party's Expert, Part 3
Michael G. Wales | Carpenter, Hazlewood, Delgado & Bolen, PLC
VI. DEPOSING THE HOSTILE EXPERT
A. Considerations for Videotaping the Deposition
Federal Rule of Civil Procedure Rule 30 allows the deposing party a choice as to which method will be used for recording the deposition. The deposition notice must state the manner that will be used.
While the deposing attorney has some discretion about how the videotaping occurs, the video must not distort the deponent’s and/or the attorney’s appearance or demeanor.
Video depositions help to control the sarcastic and evasive expert. Videotaped testimony may also be powerful impeachment evidence at trial. Jurors may be more impacted by an inconsistency when they actually see the deponent making it, rather than hearing someone else reading the statement from the transcript. You may even be able to put together a video montage for use in a closing argument showing multiple inconsistencies in a row. Also, if an expert analysis is demonstrative in nature, videotaping the deposition may be particularly helpful.
The downsides of playing a video tape include that it may not live up to the jury’s expectations of the quality of video that should be offered in court. For instance, the video you produce may have scratchy audio, likely will not include changes in camera angle, may include the sound of paper rustling, and likely will only show the deponent. This could all distract the jury from hearing what it is you want to hear.
B. Controlling the Direction of the Conversation
Your number one job at the deposition is to get the expert talking. The opposing expert has been no doubt been told to keep his or her answers short and you might struggle, at least at first, to get more than one word answers to your questions. Because of this, many legal commentators suggest that you ask “why” questions to get the expert talking. Not only will you learn how well the expert will perform a direct examination, but you will get an idea which questions you should avoid during cross. Furthermore, an expert that starts opening up to you early on me later making it may make an admission that they would not have made otherwise. Obviously, if the expert goes into a long-winded diatribe about a subject having no relevance to the case, rein the expert back in by asking leading questions. In most instances an overly talkative expert would be a good problem to have.
You should ask more open-ended questions than leading questions to get the expert accustomed to talking. For the most part, leading questions should be saved for trial when you already have knowledge of all the facts. On the other hand, questions that dilute the expert’s theory should be asked throughout the deposition.
Experts will often qualify their opinions by stating things that are “generally” true or that in “most instances” the presence of certain variables leads to a certain result. Listen carefully for these statements, because they suggest the expert is aware of the presence of exceptions to the opinion they are offering. These exceptions are further ground for questioning; explore them in depth. Furthermore, always listen for any suggestion that the expert is ambivalent about their opinions or that their opinions rely on unproven assumptions. In some instances, the expert will be required to testify with reasonable certainty – if such certainty is not present, the opinion will be excluded. The expert’s hesitation to make definite opinions may provide ammunition for argument that the required degree of certainty is not present.
You should use a deposition to set up a cross examination that will damage the expert beyond recovery. If an expert recognizes that there are a variety of exceptions to the general rules supporting their theory, or that a variety of sources are contrary to their theory, you may consider waiting until trial paint them into a corner as advancing a theory against the weight of authority.
The deposition can present an excellent opportunity to get concessions from the expert they are not qualified or capable of giving opinions on certain topics at trial. For instance, an expert may be qualified to testify concerning liability but not damages, or damages but not causation. Get these concessions at the deposition and remind the expert of them during cross when they start giving opinions on matters they previously conceded they could not.
At the deposition, the deposing attorney should be a good poker player. The attorney should not hastily show his or her hand to the expert. In addition to developing evidence of the expert’s misrepresentations about himself, you may also attempt to have the expert link themselves closely to an association that has provided a report contrary to the expert’s opinion in your case or you may have the expert confirm the reliability of a treatise or other source that contradicts the expert’s opinion. You may want to spread these questions out over the course of the deposition to mask your true objective.
If you catch an expert in a significant lie about their background, do not bring up that lie until trial. This is potent information that will destabilize the expert in opposing counsel at trial, and you do not want them to have time to develop an explanation prior to trial. You certainly do not want opposing counsel retaining a new expert after the deposition because they recognize you would be able to destroy the credibility of their current one.
The focus of the expert deposition revolves around the “what” and the “why”. In other words, “What do you believe?” and “Why do you believe it?”. Keeping this focus in mind allows you to question the opposing expert in an organized and methodical manner, and effectively “pins down” the expert so that his or her ability to present different opinions at trial is compromised and his or her opinions are limited to only those areas where he/she does have specialized knowledge, and has a proper basis for such opinions.
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.