A good friend of mine (one of the finest complex litigators I know) and I sometimes joke that you could, if you wanted to, send a first year associate to take an expert deposition and get just about as good results as a senior partner - as long as the associate followed some key rules [several of which many attorneys constitutionally find hard to accept].
Understand that you don't need to know more than the expert [even if you have training in their area of expertise and believe that you can match wits with them, it can actually get in your way]
Come to the deposition and adopt a pose of not knowing anything. Ask questions and the let the expert explain key terms as if you were taking their 101 course.
Take their report - dissect it into its major statements - the ones that form the basis for the key opinions - ask three questions - what does this mean in lay terms - why do you say this [e.g. what is the basis in fact and theory for the statement] and is that all you have to say about this point? As long as you carefully and thoroughly explore the innards of these three questions for each key point, the rest of the deposition is frosting on the cake.
Why? Because object no.1 in an expert deposition is the same object as in any deposition - you want to find out what the witness has to say and why they are saying it. Doing battle with the witness may be fun and maybe you can box them in - once you get the important information out - but generally it is unproductive and it only trains the expert witness in how to better fend off your cross-examination at trial.
Moreover, showing off to the expert and the other side how much you know about the subject matter impresses no one. In fact, if you think that you know more than the expert about his or her area of expertise you can get yourself in trouble, regardless of whether it is true or not. Better to have a laundry list of questions from your expert rather than creating one on your own. They will have read the report and will know what they need.
Better yet, if possible [costs permitting] have the expert there to make sure that you aren't getting the run around [although you shouldn't be if you follow the rules above]. If not, here is a fairly easy rule to follow - if you don't understand what it is that the expert has said - ask them to explain - bit by bit - you can bet that if they can, this is what you will see at trial anyway and if they can't then the other side has a real problem.
Now, back to the initial premise - how do I know that you can send a young lawyer in to take an expert deposition? It happened to me twice. Once when I walked into my office from court and one of my senior partners told me that I had to take a deposition in someone else's case who had just called in sick. The expert and the other side's counsel had been waiting for an hour already and were about to leave. He handed me the file and said go. He didn't even tell me which side we were on and who we represented. He just gave me the report. I went in, took the deposition and got every thing that our side needed [I even found out who our client was within the first five minutes]. I just went through the report [unfortunately for the first time during the deposition] and followed the above rules.
The other instance was when, as a young lawyer, I was asked to take a deposition of an eminent statistician from the University of Chicago. I had never taken statistics before and believe me I had no clue about the subject matter. But I followed the principles set forth above - learned from him what I needed to know and used my free education in statistics to obtain everything that our experts needed so that we prevailed on summary judgment and the case settled thereafter.
The point of the foregoing is not to establish how great I am. Rather, these experiences convinced me early on that the above principles are all you need to take any expert - as long as you are willing to carefully and fully examine each answer and when you don't know what something means, just ask for a further or better explanation without worrying about the snickers that will inevitably ensue from across the table. That's all a psych anyway and if it isn't then it is your opponent's problem and not yours.
At the end of the deposition, when you have gotten what you need, just hand the expert a shiny apple and thank them.
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Posted by: alice | June 01, 2009 at 04:17 PM