So you’re going to depose an adverse expert witness. No problem.
Whatever type of case you’re litigating, you can weaken the impact of this expert with thorough preparation and an effective strategy. You might even be able to neutralize the expert entirely.
Here are some tips for taking the deposition of an opposing party’s expert witness.
Understand the goal
The purpose for taking the deposition of an adverse expert is not simply to find out what the expert has to say. Instead, the goal is to minimize the impact of the expert’s testimony and, if possible, to obtain concessions from the expert that support your theory of the case.
Before taking the deposition, learn as much as you can about the expert’s opinions, the grounds for those opinions, assumptions on which the opinions are based, limitations on the expert’s qualifications, and any biases the expert may have. Sources of information include the expert’s report and curriculum vitae, answers to interrogatories and expert witness disclosures, lawyers who encountered the expert in other cases, your own experts, and the Internet.
Go online and find out as much as you can about the expert. Review the expert’s curriculum vitae and read every article written by the expert that might be germane to your case. Try to find learned treatises or other publications you can use under Evidence Rule 803(a)(18) to obtain concessions from the expert. Consider reading a chapter or two in a textbook or treatise to learn more about the expert’s field of expertise.
Identify your key points
Before taking the deposition, create a list of the key points you want to make with the expert. These examples illustrate the types of key points that might be on your list:
- Most of the expert’s income is earned by working as an expert witness.
- The expert testifies exclusively for one side or the other in litigation.
- The expert’s opinions are beyond the scope of his or her expertise.
- Courts have excluded the expert’s testimony on Daubert, Frye or similar grounds.
- The expert’s testimony is inconsistent with published articles he or she has written.
- The expert’s opinion is based on assumptions that will not be borne out by the evidence at trial.
- The expert’s opinion is based on an erroneous or implausible theory.
Focus on your key points
Ideally, the transcript of the deposition will contain some key points or “nuggets” you can use at trial to undermine the expert’s opinions and affirmatively support your case. When questioning the expert, it’s best to jump around from topic to topic and move quickly to a new topic when you’ve made your point. Avoid following the pattern of a direct examination, which covers in detail the expert’s qualifications, the expert’s opinions, and the grounds for those opinions. Remember that the expert may become unable or unwilling to testify in person at trial. You don’t want to create a transcript your opponent may be able to use to present the expert’s testimony.