Civil Litigation Discovery Legal Topics

Techniques Top Attorneys Use When Questioning an Expert

attorney going up a level in her deposition questioningWhen taking an expert’s deposition, you start with questions to learn everything that he or she thinks about the case and has done or plans to do in connection with it. Once that’s done, consider taking your questioning up a level with these three techniques.

  1.  Assume the expert is correct. An often effective technique is for the questioner to assume that the opposing expert is correct.

EXAMPLE  1:  In a typical slip-and-fall case, if the plaintiff’s expert claims that the plaintiff slipped not because of some foreign substance on the pavement or flooring but because the surface itself had too low a coefficient of friction, the questioner might ask a line of questions assuming that the floor really was as slippery as claimed. Then the questioner can ask whether the expert has heard of any other similar incidents and, if not, how the expert accounts for this seeming lack of consistency.

EXAMPLE  2:  If the defendant’s expert in a products liability suit contends that the accident happened because of the plaintiff’s habitual misuse of the product, the expert should be questioned about why the plaintiff was not injured while misusing the product on some earlier occasion, or why other users of the product, who have similarly misused it, have been able to avoid injury.

  1.  Make the expert go to the extreme. When the expert’s opinion seems questionable, the examiner can make it appear ludicrous by applying it to similar but more extreme facts. An expert who can be led to such an extreme suffers a loss of credibility in the jury’s eyes, and opposing counsel will have a strong basis for arguing that the expert—far from being an objective scientist—is simply an advocate seeking to be hired to testify in as many cases as possible.

EXAMPLE: If an expert states that no automobile gas tank should suffer a fuel loss in a 50-mile-an-hour accident, the examiner might ask if the expert feels the same way about an accident at 60, 80, or 100 miles an hour. This line of questioning puts the expert in the dilemma of either committing to some fixed, litmus-paper speed (e.g., 62.8 miles an hour) above which fuel loss is permissible but below which it is untenable, or claiming inability to answer the question without additional data. The expert who admits the need for additional data isn’t out of the woods if, for example, she testifies that, even in an assumed 300-mile-an-hour accident, she would still have to examine the wreckage of the vehicles to know for sure whether the resulting fuel loss had been caused by a defective gas tank.

  1.  Raise the expert’s conclusion consistency. Although a professional expert who has testified dozens of times in similar or identical cases may appear abundantly qualified, this past experience can often be the expert’s greatest weakness. The examiner should fully explore the expert’s prior testimony and work the expert has performed in earlier related cases to determine whether the expert has reached the same conclusion in all or most of these cases.

EXAMPLE:  The expert has testified in 30 previous failure-to-diagnose-cancer cases and concluded that the failure to diagnose was not negligent in each. If the questioner can elicit testimony from the expert that the cases occurred in different states, involved different doctors with differing levels of experience, and involved diagnoses of differing kinds of cancer and differing claims of delay, the way will be paved for counsel to note at trial that the only consistency in the case is that the defendant’s expert always finds a lack of negligence.

Get guidance from top trial attorneys on taking an expert’s deposition in CEB’s California Expert Witness Guide, chap 11.  And check out CEB’s program Tips for Examining Experts at Deposition & Trial from the Plaintiff, Defendant & Judge Perspectives.

Other CEBblog™ blog posts on expert witness questioning:

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