The task of deposing the opposition’s expert is simplified immeasurably by keeping in mind the deposition’s fundamental purpose: to discover all of the expert’s opinions and all of the bases for those opinions. Your goal should not be to impeach the expert but rather to concentrate on learning everything the expert thinks about the case, has been told or learned about the case, and has done or plans to do in connection with the case. To help reach that goal, here’s a checklist of questions to consider asking when you’re deposing the opposition’s expert.
__ Date expert was first contacted about case; number of hours expert has worked on case; how many hours expert anticipates working on case in the future.
__ Expert’s fee arrangements and how much he or she charges for each phase of the case.
__ Expert’s credentials; other similar cases expert has worked on; has expert always been on same “side?”
__ Expert’s assignment when hired; any changes or new assignments since then; reasons for assignments.
__ What written or other material was expert given or did expert examine concerning the case?
__ What other information, including outside reading, has the expert considered concerning the case?
__ Has the expert performed any experiments or made any demonstrative evidence for trial?
__ What opinions has the expert reached? On what are they based? Has the expert written a report concerning the case? Has the expert put his or her thoughts on paper concerning the case?
__ Describe or give the expert additional evidence that he or she did not consider in arriving at his or her opinion, and ask if that changes the expert’s opinion.
__ How sure is the expert of his or her opinion?
Unlike the approach used at trial—i.e., keeping the opposing expert tightly constrained and restricted to giving yes and no answers—the aim of the deposition is getting the expert to talk openly and give complete explanations without holding anything back.
Check out CEB’s California Expert Witness Guide, chap 11, for details on each of these areas for questioning as well as additional questions you could ask. Also check out CEB’s Action Guide Handling Expert Witnesses in California Courts, steps 21-29.
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