- Accuracy of the expert disclosure information. Confirm the scope of the expert’s retention as stated in the expert witness disclosure and clarify any departure from it.
- Production and review of the expert’s file. Ask the expert to produce every document read, referred to, or relied on in forming opinions about the case. Review the expert’s file, including documents reflecting communications with the retaining counsel. Ask the expert witness to explain any unclear notes or memos contained in the file. The expert’s file may, but need not be, marked as an exhibit to the deposition.
- Communications with the retaining counsel. Ask the expert to relate the content of all communications with opposing counsel and the opposing party pertaining to the case. It’s usually a good idea to ask the witness if he or she recommended any testing, research, or investigations that opposing counsel refused to approve.
- Additional trial preparation. Determine whether the expert contemplates doing any additional work before trial, and if so, the nature and extent of such work.
- Statement of and basis for the expert’s opinions. Ask the expert to state each opinion he or she was retained to provide, the factual basis of that opinion, and its scientific basis, if applicable.
Once you’ve got the expert’s opinions for the record, make a judgment call as to whether to proceed beyond this point of inquiry. Most attorneys ask all questions and examine the witness thoroughly to avoid any surprise at trial. But sometimes, if it appears likely that the case will proceed to trial, the examiner may wish to adjourn the deposition as soon as each opinion and its basis have been obtained. This approach avoids alerting the expert or opposing counsel to anticipated areas of impeachment.
By contrast, if the case is likely to settle and the expert’s opinions appear to be based on facts contrary to the evidence, the examiner may attempt to neutralize the witness by asking hypothetical questions based on counsel’s understanding of the facts. For example, “Would your opinion be different if the plaintiff’s first complaint of headaches occurred 6 months after the accident, not 24 hours after the accident?”
Get guidance on substantive questioning of deponents in CEB’s California Civil Discovery Practice, chap 6. On exchanging expert information, turn to chapter 11 of that book. And definitely check out the material on an expert’s deposition in a civil case in CEB’s California Expert Witness Guide, chap 11.
Other CEBblog™ posts you may find useful:
- 5 Things to Do Before Deposing an Expert
- Questions to Ask When Deposing an Expert
- The Best Way to Attack an Opposing Expert
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