Deposing an expert witness can be intimidating. With Evan Schaeffer’s Deposition Checklists and Strategies, you’ll be prepared to face the opposing expert (and other witnesses) with confidence. Here, excerpted from the book, are five tips to help you with your next expert deposition.
Investigate the CV Before the Deposition. Don’t save your review of an expert’s CV for the night before the deposition. Read it well in advance of the deposition, then mark it up and investigate the expert’s claims. Here are some things to look for:
- What does the CV say about the expert’s areas of expertise? How does this overlap with what the expert is going to testify about in your case? Sometimes there is a large gap between what the expert actually does at work and what he or she plans to testify about at trial.
- What are your expert’s particular areas of research interest? Again, there is often a large gap between what the expert is spending time researching in real life, and what he or she has been hired to testify about in your case.
- Does the CV contain puffery? Are there claimed memberships that have expired? Are there claimed licenses that have lapsed? Were the majority of the expert’s honors and award granted years ago? All of these things are fair areas of inquiry at the deposition.
- What is omitted from the expert’s CV? Always check news databases and published opinions to find out more about the expert’s professional life and activities.
- To whom is the expert beholden? If the expert is working or consulting for industries that hold views contrary to the one you are presenting in your case, this is something you’ll want to explore further at the deposition. If the expert’s CV lists grants, find out who sponsored those grants.
Walking the Expert Out on a Limb. An expert defending a weak opinion sometimes has to take absurd positions in order to defend the opinion. Be on the lookout for any opportunity to walk the expert out on a limb. Then, pin the expert down so that he or she cannot back away from the absurd position later.
Neutralizing the Expert. When fact witnesses testify that they didn’t witness an event—because they weren’t present, weren’t in a position to see it, etc.—they are effectively “neutralized” as witnesses on the particular event. You won’t have to worry that the witnesses will come to trial with a new or different version of the event.
Expert witnesses can also be neutralized. Once they admit that they don’t hold an opinion on a topic, this will generally bar them from offering an opinion at trial. Here’s a question for neutralizing experts that you can add to your repertoire: “You don’t hold an opinion on this issue, correct?” If the expert agrees, you’ve neutralized the expert on the particular issue.
Get the Expert’s Assent to Undisputable Facts. In every case, there will be facts that even the opposing expert will be unable to dispute. At the deposition of the opposing expert, you can obtain his assent to such undisputable facts. This will pave the way for you to use the opposing expert at trial as a mouthpiece for your own point of view.
T. Evan Schaeffer is a principal of Schaeffer & Lamere, P.C., based in the metropolitan St. Louis area. He represents primarily plaintiffs in complex commercial and tort litigation, including mass torts and class actions, as well as general civil litigation. Mr. Schaeffer publishes two weblogs, the Illinois Trial Practice Weblog and Evan Schaeffer’s Legal Underground, which together have received notice in many print publications including The New York Times and The Economist.