In addition to the file materials used in preparing for deposition—and that should be reviewed again for trial—there are at least four types of written materials that every expert witness should carefully read and analyze before testifying at trial.
- The expert’s own deposition. Forward the transcript of the expert’s deposition to him or her as soon as you get it, with instructions to read it carefully word for word, note any additions or changes that appear warranted, and discuss the matter with counsel before asking the court reporter to make any revisions. You should assemble a list of portions that might be used during cross-examination by the opponent and discuss them with the expert, formulating appropriate responses.
- Depositions of opposing experts. The expert must read and be intimately familiar with the deposition testimony of opposing experts so that he or she can assist you in preparing for cross-examination of them, and can respond to questions on direct examination on portions of the opposing experts’ depositions.
- Other key depositions. Experts usually don’t need to read the depositions of all witnesses in a case in their entirety, and in many cases this won’t even be possible, but in most cases there will be several key depositions that the expert should read, either in whole or in part. In Shiffer v CBS Corp. (2015) 240 CA4th 246, plaintiff learned a hard lesson about providing experts with necessary deposition testimony to review. Despite its importance, plaintiff didn’t provide his experts with his own deposition testimony, resulting in the experts not analyzing the complete set of facts and thus not providing evidence of plaintiff’s asbestos exposure.
- Key reports, materials, and documents. Although it’s seldom necessary and sometimes impossible for the expert to read every document in a case personally, there are almost always key documents, e.g., the police report in a traffic accident collision, a change order in a construction case, or correspondence in a contract dispute, that the expert must read and with which he or she must be thoroughly conversant.
Always warn your expert not to decide unilaterally what to review for trial, because of the danger that opposing counsel may therefore be entitled to information that he or she might otherwise not discover. See Evidence Code §771. Similarly, warn your expert against writing down his or her thoughts—any time the expert makes a written record of his or her thoughts or opinions, the opposition gets a “paper trail” of potential impeachment material.
For more of this type of guidance for preparing your expert for deposition and trial, turn to CEB’s California Expert Witness Guide, chap 12.
Check out these other CEBblog™ posts on expert witnesses.
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