In complex litigation, the majority of cases settle prior to trial, meaning the real battle often takes place during discovery. Though fact witnesses are certainly important, any experienced attorney knows that an expert witness can make or break a case. This is why expert deposition is typically one of the most significant events for your case—and one of the most important things to get right.
When an expert deposition goes well, it’s suddenly not in your opposition’s best interest to continue on to trial—and makes settlement negotiations all the more appealing. Here, we’ll discuss four of the best expert deposition strategies and tactics to ensure every deposition is successful and brings you closer to a favorable settlement for your client.
1) The Expert Report
The trial court’s case management order will set a deadline for the parties to exchange expert witness reports—plus, federal rules prohibit the deposition of an expert witness prior to the production of that witness’s expert report. However, savvy attorneys will request depositions of their opponent’s expert as soon as the expert’s identity becomes known. The attorney can then use the opposing expert’s written report to prepare for the deposition.
Your preparation for deposing an opponent’s expert should include sending a copy of the expert’s report to your own expert. Once your expert has received the report, schedule a call with your expert to discuss. You’ll want to make sure to ask your expert where they believe your opponent’s expert is vulnerable on cross-examination. Did the other expert make an unreasonable assumption or misconstrue the facts of the case? If so, ask your expert for some suggested questions or topics you can use to exploit the opposing expert at the deposition.
Attorneys can also access detailed research into the opposing expert’s litigation history via Challenge Studies. You’ll receive a custom report on the expert’s gatekeeping challenge outcomes summarized by grounds of challenge and outcome across federal and state jurisdictions. You can quickly assess the expert’s integrity in the legal context, plus see whether colleagues have previously interacted with them in past cases. If so, ask for a copy of the report the expert did in that attorney’s case.
Some experts use the same canned language over and over again in their reports. Some even, despite different facts on different cases, reach the same conclusions in their reports. If you notice this trend with the opposing expert’s reports, it might be a good idea to go through all of these reports at the expert’s deposition. Illustrate how they rarely waver from the same conclusion for an especially incisive deposition performance.
2) The Notice
Another important step is both sending and receiving a notice to take an expert’s deposition. When sending the notice to depose the opposing expert, it is a good idea to include a subpoena duces tecum in order to require the expert to produce documents at the deposition. This way, counsel can compel the expert to bring critical documents, such as their entire file on the case, any articles or literature they used in writing their report, and any correspondence or communication they had with opposing counsel on the case. It’s also important to remember that any documents requested in the subpoena duces tecum must also be listed in the deposition notice.
Upon receipt of a notice to depose your expert, counsel should carefully examine the notice and make sure it doesn’t contain any errors or irregularities. If the notice does contain something objectionable, those objections must be made in writing and served upon the noticing party promptly, otherwise, the objection is waived. If the notice was also served with a subpoena, counsel may seek to quash the notice and the subpoena. However, this will require counsel to make a showing for good cause. If a subpoena duces tecum has been issued, counsel will need to carefully review the list of requested documents. Any unreasonable requests will need to be responded to and objected to so as to preserve the party’s right to object at the actual deposition.
3) The Objections
During the expert’s deposition, objections may be made for the record as a way to preserve the objection for any future trial. Since a judge is typically not present at the deposition, counsel will make the objection. The witness will then answer the question regardless of the objection. Under Federal Rule 30(c)(2), witnesses can only be instructed not to answer the pending question if it seeks privileged material, disregards a court-ordered limitation, or provides sufficient grounds for terminating the deposition altogether. Occasionally, opposing counsel may instruct the witness not to answer for a variety of other reasons. If the instruction is not valid, counsel should remind opposing counsel of the Rule and ask them to comply for the remainder of the deposition.
Even though the majority of questions should be answered despite an objection, some attorneys will attempt to use objections as a means to coach their witness. These “speaking” objections occur when, instead of simply stating their objection and the basis for it, the attorney makes their objection and then attempts to guide their witness toward a certain conclusion. One way to put an end to these speaking objections is to make a statement on the record that opposing counsel is engaging in such behavior, it is improper, and that if the behavior continues the deposition will have to be postponed while court intervention is sought.
4) Using The Deposition
Federal rules do permit using the expert’s earlier deposition at trial to impeach the testifying expert witness or to substitute for unavailable witnesses. The allowance of prior deposition testimony as a means to impeach the expert at trial makes it crucial to record the original deposition. If the opposing expert is on the stand at trial and begins to deviate from the line of questioning, you can then play favorable portions of the expert’s deposition in order to prevent them from further explaining or couching their testimony.
It may also be beneficial to take an evidentiary recorded deposition of your own expert before trial. Often experts will have busy schedules that do not allow them to attend trial at the time you need them to testify. Other times their fees for trial testimony and travel are so high that it just makes more sense to go to where the expert is located and depose them instead. If you plan to use this kind of deposition at trial, make sure to have any and all exhibits completed and ready for the deposition recording so that the expert can refer to and use the exhibits in the same way they would if they were live on the stand at trial. Like any other exhibits used during a deposition, these exhibits must be marked and identified for the record.
But to avoid any fee schedule conflicts altogether, source your next expert through Expert Institute’s Expert Witness Search service. Every expert candidate is fully vetted and qualified prior to presenting for your review—this means making sure they can attend every hearing and their credentials match your case needs to-a-T. In a matter of days, you’re connected with an actively-practicing professional who meets all your precise requirements—no surprises.
Expert depositions can make or break your deposition performance, and consequently, your case. By using these strategies and tactics, you’ll be set up for expert deposition success and on to settlement.