Deposing an Expert Witness Ė 6 Tips For Success
The deposition of an expert witness is the culmination of the opposing partyís defense or prosecution theory of the case. Before taking an expertís deposition, the parties should have completed fact discoveryóinterrogatories answered, documents obtained, lay witnesses deposed. Aug 30, †∑ An expert deposition should generally result in more than a simple list of opinions. Including questions which help you see the expert through "big picture" glasses will give you an idea of how a jury would see the witness during direct and cross-examination.
Under the current circumstances, much business ó how to get over my fear of flying legal business up to and including hearings and trials ó is being deposse via Zoom or its videoconferencing equivalent. Everything not affected by not having the how to depose an expert witness in the same room remains the same: e. If you want to imagine what the expert could be up to, think about your last Zoom meeting and whether you were watching anything else, doing any work, or talking to or corresponding with anyone else while you were in the meeting.
Now multiply that by 10, since the expert and the party hiring him or her has a real incentive to cheat, not just boredom what does a typical home inspection include one to multitask or seek diversions. For the Court Reporter : Make sure that you confirm not only that the deposition will be recorded but that the video will only show the expert being deposed. In some cases ó e. Before you launch into anything substantive, you have to get the following questions in to protect the integrity of the process ó feel free to change the exact wording to better capture your own style.
Remember: the purpose of an expert witness is only half exploratory ó to learn what the expert knows, thinks, and will testify to. The other half is to create record which can use to pin the expert down or impeach how to depose an expert witness or her. Photo by Allie on Unsplash. Steven J. Zweig is an experienced litigator specializing in commercial disputes and breach of contract cases, who is licensed in New Jersey and New York.
He is also currently the Managing Editor of Biotechnology Law Report, a legal journal about the law and regulation of biotechnology. About Steven Zweig Steven J. Join Our Newsletter. Click tp Subscribe.
Whether to Conduct Depositions of Expert Witnesses
As the attorney who is preparing to depose an expert witness, you must be certain of the objectives for taking the deposition. The basic purpose for taking the deposition should be twofold: (1) to determine the expertís opinions and conclusions and (2) to undermine and limit File Size: KB. Deposing Expert Witnesses. Featured presentation on 12 October , at the NYSBA CLE Program, Winning Your Case at the Deposition: Effective Tools for the Successful Litigator, co-sponsored by the Torts, Insurance and Compensation Law Section and the Committee on Continuing Legal Education of the New York State Bar Association.[full text with in-line citations]. Social distancing makes cramming at least four (deposing attorney; other sideís attorney; expert witness; court reporter) and often more people into a conference room for hours on end inadvisable, even when itís legal (i.e. when your stateís executive orders arenít outright banning having so many unrelated persons in a room together).We donít know how long this will go on, but smart.
Skip to content. The deposition of an opposing party's expert witness can be the single most important deposition in a lawsuit. A successful deposition can have a number of consequential impacts on a case, including setting up a Daubert motion to exclude all or at least some of the expert's opinions, and making the party proffering the expert witness rethink the strength or lack thereof of the merits of its claim or defense.
So how do you take a successful deposition of an expert witness? Every lawyer will have a different perspective, but in my opinion an effective deposition of an expert witness will attempt to accomplish the following four main goals:. Show the expert opinion is not grounded in the facts of your case. Oftentimes, your adversary will hire a well-regarded, and highly reputable economist whose qualifications on paper are strong. With experts of that caliber, they often are working on many matters and their opinions are not always rooted in the facts of your case.
You should carefully review the documents considered by the expert and see if meaningful information in the record was ignored. If so, those can be powerful sources of information to cross examine the expert witness on.
You can not only get on the record that the expert did not consider important pieces of the record, but you also can get the expert's likely unprepared testimony on the subject matter of that key information. Even for materials an expert discloses as having considered, perhaps the expert relied heavily on consulting experts and did not study those materials very carefully. Confronting an expert witness with, for example, "bad" documents for the party proffering that expert can often elicit testimony that is conclusory or not credible in the face of the record evidence.
Lock in and limit the scope of the expert opinion. You do not want an expert coming in at trial and offering opinions that were not squarely disclosed in his or her report.
One aspect of your deposition should be to get the expert witness on record with clean admissions that he or she is not offering opinions on subject matters not within his or her report. So, for example, if an expert witness is planning to testify about damages, you should lock that expert witness in that none of his or her opinions relates to liability or that liability is assumed in his or her analysis. Turning to the areas the expert witness is opining on, try to narrow the scope of the anticipated testimony or weaken it, if possible.
For example, you may be able to limit an expert opinion to certain key assumptions that you can disprove through other witnesses ultimately rendering the expert opinion meaningless or of far less weight.
Undermine the credibility of the expert opinions offered. Another way to attack an expert opinion is to show that it is incredible. One way to do this is to show that the opinions being proffered are inconsistent with prior opinions of the expert. A careful review of articles, testimony, or other public statements by the expert witness is necessary to conduct a line of attack on this basis. Another way to challenge the credibility of an expert opinion is to paint it as extreme or radical.
For example, you can test the expert by asking if his or her opinions would hold in other fact patterns hypothetical or actual ones that a fact-finder would likely find unpersuasive if the expert steadfastly maintains his or her analysis would not change in those scenarios. See how strongly the expert defends the opinions offered. Lastly, you should view an expert witness deposition as a chance to see how the expert will present in front of a judge or jury.
On the opinions the expert intends to offer, you should conduct a cross examination like you would at trial and see how the expert reacts and defends his or her opinions. Like any other witness in a case, you want to see how the other side's expert will come across to a fact-finder.
For example, will they not answer your question, will they seem evasive, do they turn arrogant. Knowing how an expert witness will present in a case, including even if you think they will present well, goes a long way to helping you advise your client on the case. In order to achieve these four goals and take an effective expert witness deposition, it goes without saying, that ample preparation is necessary. The investment is well worth the time and expense because of the potentially outcome-determinative nature of an expert witness deposition.
Eric S. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author s and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer s of the author s.
Search ABA. Close Search Submit Clear. Every lawyer will have a different perspective, but in my opinion an effective deposition of an expert witness will attempt to accomplish the following four main goals: 1.