Legal Underground #51: Advanced Deposition Techniques, Part 3

The Legal Underground Podcast, Episode 51.

On today's show, Advanced Deposition Techniques, Part 3.

Miscellaneous Tips for Expert Depositions.

This is The Legal Underground Podcast, hosted by Evan Schaefer.

One of the friendliest trial lawyers you're ever likely to meet, but hopefully won't have to.

And now, here's Evan Schaefer.

Welcome to The Legal Underground Podcast.

I'm Evan Schaefer, a trial lawyer from the St. Louis metropolitan area,

and author of the book Deposition Checklists and Strategies, published last month by James Publishing.

This podcast is the last of a three-part series about advanced deposition techniques.

Today's topic is expert depositions.

Why do I like deposing experts?

Probably because the subject matter is usually interesting and usually complex,

which makes it necessary to stay on your toes.

But because you don't have to outsmart the expert,

only find out everything you can about his opinions on the topic at hand,

deposing an expert is not as hard as it might seem at first.

Today I'm going to cover three topics.

Topic 1. What's the world's shortest expert deposition outline?

Topic 2. Preparing for expert depositions by looking ahead to the crossroads,

and looking at the results of the cross-examination at trial.

Topic 3. Five ways to hit a home run with an expert's CV.

The first two topics are drawn from things I've already written about on my web blog,

the Illinois Trial Practice web blog.

The third topic comes from my new book, Deposition Checklists and Strategies.

The book has a lot of stuff in it about expert depositions,

so if expert depositions are your thing, like they are mine, my book might be for you.

You can find out more at jamespublishing.com.

All right.

Topic 1. The world's shortest expert deposition outline.

I once heard a lawyer claim you only have to ask a single question at an expert deposition.

What are your opinions?

That's a one-question deposition outline.

A slightly longer five-question outline can be found at the Trial Lawyer Resource Center.

According to the author of a post that appeared there, you can, quote,

take an effective deposition on the fly by remembering five essential questions and their logical sub-questions.

Number one.

Who engaged you in this case?

Number two.

What did they ask you to do?

Number three.

What did you do?

Number four.

What conclusions and opinions did you reach and what do you intend to testify to at trial?

And number five.

Were there any other tests or analysis or things you could have done or would have done but didn't?

End quote.

Personally, both of these very short outlines are a little too short for me.

But the exercise of writing a short outline is a helpful one because it forces you to consider

what's most important.

What's most important about a deposition and why?

These are two things you should always ask yourself when preparing for any deposition.

If it's an expert deposition, there's something else you should always be asking yourself.

How are you going to use the expert deposition once you're finished with it?

Most likely, you'll be using it to cross-examine the expert at trial.

Which brings me to topic number two.

Preparing for expert depositions by looking ahead to the cross-examination at trial.

In most cases, depositions don't stand alone.

Instead, they're preparation for a trial.

A trial that's going to happen sometime in the future.

It's something that's true of most pretrial discovery.

It's almost never an end in itself, but something that will be used later in front of a jury.

This is why the finer points of pretrial discovery are always more easily grasped

after a lawyer has witnessed or participated in some actual trials.

The looking ahead to trial tip is especially useful when preparing to depose an expert.

Remember, the questions you ask aren't ends in and of themselves.

Instead, they're groundwork.

For a later cross-examination at trial, even though every cross-examination of an expert

at trial will differ in its particulars, most lawyers try to achieve five things.

One, illustrate the weaknesses in the expert's qualifications or expertise to render the

opinions he's rendering.

Number two, illustrate the expert's lack of preparation to render the opinions he's rendering.

Number three, illustrate the expert's biases against your client and in favor of the party

you hired him.

Number four, point out the.

Assumptions the expert is making that will be disproved in your own case.

And number five, obtain helpful testimony from the expert that supports your own theories

at trial.

It sees five key areas of cross-examination that you'll be preparing for in your deposition

of the expert.

How's it done?

Let's take the five areas again.

First, at trial, you'll illustrate the weaknesses in the expert's qualifications or expertise

to render the opinion he's rendering.

Now, it's during the deposition that you'll try to discover these weaknesses.

By asking questions that expose the expert's lack of qualifications and expertise in the

particular area he's testifying about.

Two, at trial during cross, you'll illustrate the expert's lack of preparation to render

the opinions he's rendering.

And again, it's earlier during the deposition that you'll try to uncover the expert's lack

of preparation by asking questions about what the witness has done or hasn't done in order

to prepare himself to render his opinions.

Number three, during your trial cross, you'll illustrate the expert's.

biases against your client and in favor of the party who hired him.

And again, it's during the deposition that you'll try to uncover the expert's biases

against your client by asking questions about his past work as an expert, especially for

the side for which he's testifying in your case.

And number four, at trial, during your cross, you'll point out the assumptions the expert

is making that will be disproved in your case.

But again, it's earlier during the deposition that you'll prepare for this topic by asking

questions that reveal all the expert's opinions.

His support for those opinions, and the factual assumptions he's making to reach those opinions.

And five, finally, during your trial cross, you'll obtain helpful testimony from the expert

that supports your own case.

By now you know the drill.

That's what you'll do at trial, but it's during the earlier deposition that you'll prepare

for this topic by asking questions designed to get the expert to agree with facts that

support your theories of the case.

Sound simple?

It is pretty simple, but it's a technique most lawyers don't think about.

At least, try it out yourself.

By thinking about your next expert deposition in terms of the later cross-examination at

trial, you'll not only provide yourself with a quick thumbnail outline for the deposition,

but you'll also be preparing the way in advance for the later cross-examination at trial,

especially if you start to flesh out your expected cross-examination at the same time

as you prepare for the deposition, which is what I do.

So then, on to topic three, five ways to hit a home run with an expert's CV.

This topic is based on one of the many practice tips you can find in my book, Deposition

Checklists and Strategies, recently published by James Publishing.

An expert's CV, of course, is a curriculum vitae, a fancy sort of resume that lists an

expert's credentials and accomplishments.

To use an expert's CV to your advantage during a deposition, you have to read it critically

in light of the expected areas of cross-examination I talked about a few minutes ago.

Always remember to ask these five questions as you read the expert's CV.

The first one is the most important one.

The second one is the most important one.

The third one is the most important one.

The fourth one is the most important one.

The fifth one is the most important one.

The second one is the most important one.

The fifth one is the most important one.

The sixth one is the most important one.

Let's get out of the comfort zone and talk about the facts of this, because we'll

be talking about it.

The fourth one is the 49 hours, so the next question must come up again.

The unjesus has been charged with 150,000 dollars ofлось at grants for writing a English

book here.

The guess should be 50,000 dollars, but the next questionorama of the award went into

a total också It's a good problem and a good time to

address what you're reading here.

From the sources there may be a story that says that it's the number one interest,

and 으it means someone basically had to steal up more money.

If you can't tell from this, Since I saw this, I think it belessed.

expertise. It may do just the opposite if they demonstrate a lack of knowledge about

the area of testimony. Also pay attention to the quality of the publications. Are they

peer-reviewed? What about the quality of the publishers? Are any of the experts' books

or articles self-published?

2. Who is the expert beholden to?

Many experts list the companies or industries for which they have consulted. This might

be evidence of bias if it shows your expert is aligned with or beholden to the defendant.

If there is a section concerning research grants, for example, remember to ask who funded

the grants.

3. What real-life experience does the expert have in the subject matter of his opinions?

Look for discrepancies between what the expert actually does in his professional life and

what he plans to testify about at trial.

4. Has the expert made any mistakes in his CV?

Many expert CVs contain inaccuracies. Some will be obvious, but others may need to be

fleshed out by means of other research or questions at the Deposito.

In either case, mistakes in the expert's CV, especially if they are major ones, will

not reflect well on his credibility.

5. Does the expert's CV contain exaggerations?

Exaggerations can be just as useful as mistakes. Has the expert promoted himself to a position

he never really held? Does his CV contain a lot of fluff and padding? If you can catch

your expert in a pattern of exaggeration, it will cast doubt on the reliability of the

substantive opinions he plans to testify about.

6. Does the expert's CV contain a pattern of exaggeration? If you can catch your expert

in a pattern of exaggeration, it will cast doubt on the reliability of the substantive

opinions he plans to testify about.

And that's it. Five things to keep in mind while you're reading an expert's CV.

With that, we've reached the end of this podcast, the last of a three-part series on

advanced deposition techniques. If you're interested in listening to the other parts

of the series, look for them on my weblogs, either evanschaferlegalunderground.com or

at the Illinois Trial Practice weblog at illinoitrialpractice.com. My law firm is Schaefer & Lemire, which you

can find on the web at riverbendlaw.com. As always, thanks for tuning in.

This has been the Legal Underground Podcast. For more legal education, visit evanschaferlegalunderground

at legalunderground.com. When it doesn't nauseate, it always entertains.