Expert witness depositions are a great way to gain insight into how to best combat the opposing party’s expert and their opinions. If done correctly, a deposition can create a strong foundation for future voir dire, evidentiary challenges, and other objections to the expert’s opinion during the trial.
Examine the Expert’s Qualifications
Before diving into their opinions, experts will likely spend time answering background questions concerning their education, training, and overall qualifications. The purpose of the questioning is to establish them as an expert in their field. This background information will likely be a part of the expert’s disclosure report. If the case is in federal court, the expert’s report, including their qualifications, must be disclosed pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, with many states following similar procedures. However, an expert witness deposition allows you the opportunity to question the expert further. Additionally, a deposition allows you to potentially find some useful ammunition for the subsequent voir dire process.
A voir dire of an expert witness typically occurs during the expert’s direct examination. During this time, counsel asks questions that elicit the expert’s educational background and experience. Opposing counsel also has the opportunity to ask the witness their own questions. If you want to challenge an opposing expert’s qualifications, the voir dire is the time to do it. During the voir dire, you can also point out any credibility issues in front of the jury.
But in order to ask the right questions during voir dire, an expert witness deposition can help you gather information as to whether there are any ways to attack their qualifications. For example, does the expert have all of the requisite licenses and/or board certifications necessary for their profession? Even if such licenses aren’t required, does the expert have a credible reason why they aren’t licensed and/or certified? Has the expert ever had any of their licenses lapse? Are they licensed in the state in which the case is being heard? Also, most importantly, when was the last time the expert engaged in the work or practice area to which they are testifying? If there are any red flags, be sure to keep them in mind during voir dire time.
Review the Expert’s Report
Experts must disclose their findings in a written report. As such, it is important to review the report prior in order to understand their opinions and the bases on which the opinions the expert formed. Experts must also disclose the facts or data they considered. Because of this, the report gives you a chance to question the expert’s opinion and overall methodology.
Each state has its own standard. However, most jurisdictions follow some variation of the requirements set forth in Rule 702 when admitting expert testimony. Rule 702 of the Federal Rules of Evidence establishes that the testimony must be based on sufficient facts or data. Furthermore, the testimony must be the product of reliable principles and methods, which the expert applied to the case facts. Does the opposing expert’s report make clear the facts or data on which they relied? Is the report missing key facts? What about the scientific principles or methods followed? Is the report sufficiently explanatory? Is it possible the expert relied on faulty or questionable methods? All of these questions are worth asking during a deposition to establish the expert’s explanations. Then, you can use the answers to the questions against them, if necessary, at trial.
Review the Expert’s Previous Testimony
Experts will typically disclose other cases on which they worked. If possible, review the previous trial testimony or depositions of the expert prior to conducting your own deposition. Reviewing an expert’s testimonial history might seem like an arduous task, but you do not need to do it alone. At Expert Institute, the Litigation Analytics tool offers a visual snapshot of the expert’s case history. Litigation Analytics allows you to explore critical data and pinpoint any vulnerabilities of the expert’s, such as credibility issues or questionable methodologies.
Familiarize Yourself with the Expert’s Industry Standards
Most experts will offer their opinion on the basis of their experiences in their practice area. Therefore, it is important to familiarize yourself with the general standards of the expert’s particular industry. By doing so, you can determine whether the expert is credibly applying their acceptable industry standard to the case. One way to do this would be to hire a non-testifying expert consultant to assist you in preparing for the deposition. This expert can help you understand certain technical or scientific issues of the case. In turn, this can help you craft appropriate questions to determine whether the opposing expert’s opinions are reliable.
Research Contradicting Opinions
As part of your own case preparation, you have likely already hired your own expert witness that may have contradicting opinions to that of the opposing party’s side. In familiarizing yourself with expert opinions that are favorable to your case, you should also identify and review any and all authoritative materials or publications that you can use to discredit the opposing expert. At Expert Institute, the Strategic Research tool has reports, compiled by medical researchers, of various peer-reviewed studies and industry journals. Do these materials contradict the opposing expert? If so, be sure to question them on it!
Lastly, make sure to check out Expert Institute’s expert due diligence solution, Expert Radar, which compiles comprehensive data on opposing experts. With 24/7 due diligence, this tool can save you lots of time with deposition preparation.