transcripts of relevant prior testimony.
• Check“ expert” websites for a presence. Many experts“ advertise” on sites devoted to helping lawyers find experts in particular fields. Search for ads, but also review the details on the site for grandiose representations and“ puffing” which should be fodder for crossexamination.
• Talk to lawyers who have been adverse to the expert. This can lead you to transcripts, reports and other information which can be fodder for cross. Plus, you may get some tips on how to handle this expert at deposition or trial.
• Go to“ specialty” websites and licensing sites for general information on the expert. Is the expert licensed with a governmental agency, and if so what is the history portrayed? License status, suspensions, complaints and other information should be available from this source.
• Research articles, publications, news releases, teaching and speaking engagements, and other sites associated with the field and the expert. These can provide a host of information and sources for learning about the expert’ s activities in the field.
The point is to dig into background of the expert so you can plan the challenge to the expert’ s views and bases for those views.
The Deposition
The goal of the adverse expert’ s deposition is to“ unpack” by testimony that explore the expert’ s qualifications in an attempt to challenge or limit the expert’ s testimony at trial, and that outlines all opinions and bases which the expert believes support the opinions.. Aside from this there are other key areas of inquiry including:
• The first contact and information provided either orally or otherwise.
• Prior cases with opposing counsel and firm
• Materials provided and that which was relied on for the opinions.
• Notes and draft reports.
• Process re reaching opinions.
• Further contact with opposing counsel and firm.
• Facts requested which were not initially provided, if any.
• Opinions requested but not reached, and the reasons why.
• All the information needed has been supplied.
• Additional work anticipated, if any, and timing.
This is just a partial list. The objective is to obtain all information about the expert’ s work in the case so that there are no surprises at trial. At the end of the deposition, you should be certain that you know all there is to know about the adverse expert’ s involvement in the case.
Setting Up The Adverse Expert At Deposition— Locking In The Testimony
Aside from getting background, other cases in which the expert has testified, plus information regarding the expert’ s retention and involvement in the case at hand, there are key questions you must ask to tie down the expert on the opinions and bases for such in the case.
At the deposition ask“ open end” questions designed to“ unpack” the witness to obtain all opinions and their bases. But after“ unpacking” you need to“ lock in” the expert by a concession that there is no more. So, towards the end of the questioning, I ask these questions until I get a full and complete answer that there is“ no more.” And I do it in more than one way. That is, I rephrase questions but make the same point to emphasize the point( a common technique of a trial examiner when successful on cross-examination with an adverse witness).
Q. Mr. Expert, have you provided me with all opinions you have been asked to reach in this case? Q. Are there any other opinions you will offer at trial other than the ones you have testified to in this deposition? Q. Have you also testified to all the reasons for reaching these opinions? Q. Are there any other bases for reaching these opinions other than what you have testified to today? Q. Do I now have all the opinions you will offer at trial in this matter? Q. Do I now have all the bases for your opinions?
As noted, I ask these questions in several ways to make sure I have“ locked in” the witness to his anticipated trial testimony and to avoid any“ surprises.”
Challenges At Trial
When it comes time for the adverse expert to testify you should have a sense of whether you can successfully challenge the witness’ s qualification or limit the testimony or specific areas. If so, you should request the opportunity to voir dire the witness on these topics outside the presence of the jury after which appropriate motions should be made consistent with the testimony on qualifications elicited during this process.
Keep in mind two areas of potential challenge as represented by Rule 702 of the Federal Rules of Evidence. First, Rule 702 provides that an expert may testify to“ scientific, technical or other specialized knowledge if the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.” If the subject matter is not“ scientific”,“ technical” or“ specialized”, then expert testimony is not helpful and needed.
Also, the expert must apply the“ principles and methods reliably to the facts of the case.” Your expert should be
16 The Trial Lawyer