Category Archives: Discovery

Readying Your Experts for Traps and Tough Questions


Depositions are dangerous time for your expert.  Dangerous traps lies just around the corner. You cannot relax.  Here are some thoughts on this important topic.

1. Tendencies of your expert: If you can obtain and read past depositions of your
expert to see not only what type of questions are asked but how he reacts. Does he ramble or
argue? Does he fail to listen to the question or dodge it? Is he argumentative or polite and
professional? You may want to run through some questions, especially problems so your expert
is ready to address them. If the expert is new to the practice, I would video tape the questioning
so the expert can see how he reacts objectively evaluate his performance.  

2. Do not hide bad evidence from your expert, deal with it. If you hide bad
evidence from your expert, you will expose your expert to potential embarrassment. He may
even be force to abandon your side of the case because he was not prepared for what was coming
and unwittingly made imprudent concessions earlier in the deposition.  

3. What does the expert consider authoritative as a learned treatise? This will
be asked. How will he answer the question? If at all possible, avoid doing the deposition in the expert’s office. It will only provide bookshelves full of ideas for authoritative materials to ask
and cross examine your expert about at trial  

4. Screen your expert. Make sure you have already screened your expert’s curriculum vita in
advance for any bluster or bull not supported by the facts. Hopefully, this was done before  you ever hired your expert.  

5. Obtain Historical Medical Records. The prior medical history of a Plaintiff can
seriously undermine a case’s value and the client’s credibility. It is important to obtain all  significant prior medical history from a client. If you don’t, the defense attorney will. Without a  full medical history, a client is prone to make misstatements and create fertile ground for  purposes of impeachment at the time of trial. Likewise, expert witnesses will be unable to  address and deal with any potential weaknesses you might have as a result of any pre-existing  medical condition or prior injury. While it is tempting to limit your pretrial production of  records to those postdating the injury, it is better to do the investigation yourself ahead of time.  

6. Prepare a Medical Chronology – A detailed medical chronology prepared ahead
of their deposition, will give you a means to identify and refresh the expert’s memory regarding  past illnesses and injuries, and avoid making misstatements at the time of the deposition, or  worse, at the time of trial. In addition, by reviewing the past medical chronology with your  expert, you can address responses to the resolution of prior symptoms and/or problems.  

7. Prior Lawsuits and Claims – It is important to promptly identify any prior
litigation your expert may have been involved in as either a litigant or as a witness. The prior  proceedings can create a ready resource of impeachment through the use of pleadings, discovery  responses and depositions. Failure to identify such easily verifiable information can also make it  appear as if your expert is a liar. The prior litigation also provides background information on your expert that could lead to surprises.  

 
8. Compound Questions – Compound questions are questions, which incorporate  two questions in one. They are very deceptive and dangerous because a yes or no answer can be  interpreted as an affirmative response to the underlying predicate. For example, “Do you beat  your wife only on Tuesdays and Thursdays?” is actually two questions in one. The first question  is, “Do you beat your wife?” and if yes, is it only on Tuesdays and Thursdays? Make sure your  expert can identify an undisclosed predicate to a question which makes it compound in case you  fail to object.  

9. Summary Questions – Another classic approach to the compound question is to
summarize an expert’s prior testimony, and then ask at the tail end a yes or no question. Experts  often focus only on the yes or no question, and forget that by answering the question without  objection or clarification they are affirming the entire scenario outlined in the question. While  you, as an attorney, should object to such questions, it is important to educate the expert on these problems as well, in case you fall asleep at the switch.  

10. Box Questions – Questions in Absolute Terms – Questions cast in absolute
terms can also be a problem. Opposing counsel wants to limit your expert’s basis for his opinions and show that he overlooked or ignored some important facts. If he is attempting to exhaust your
expert’s knowledge of the facts on a topic, your expert should indicate “that is all I can recall at
this time.” This leaves an opening to refresh your expert’s memory and supplement or correct  the answer through the errata sheet. Whenever an attorney uses such terms as, “Do you always” or, “Have you never,” they are attempting to lock your expert in absolute terms. There is nothing  wrong with being absolutely sure, you just want to make sure that that is, in fact, the case. If  there are exceptions, then the expert needs to avoid answering such questions in the affirmative.  On the other hand, defense attorneys will use such absolute terms as a means of unnerving an  expert and backing them off of their testimony. The point is, make sure if you answer in absolute  terms, that you’re absolutely correct.  

11. Milk-Toast Answers – The flip side of this is to water down answers with
qualifiers such as, “I think,” “I believe,” or, “In my opinion,” when you actually know the facts.  Make sure your expert avoids using such terminology. It is better to indicate that you don’t know  or recall than to guess or speculate. Once again, the primary rule is to answer truthfully and  accurately.  

12. Do not exaggerate – Don’t take a good case, try to make it a great case, and turn
it into a bad case. Do not be an advocate. Be an expert.  

13. Remember you are a professional. Don’t respond in kind to impolite or rude
comments by opposing counsel. The only thing a witness has absolute control over is their  behavior and demeanor. By emphasizing this point with your expert, you can both empower and  relax them. No matter how rude or aggressive the other attorney is, it’s important for the expert  to remain calm and composed. By doing this, the deposition will typically be shorter. When an  opposing attorney senses he has drawn blood, he will simply bore in with more of the same. An  expert can tactically overcome this by simply remaining calm. Likewise, the expert needs to be  cautioned to avoid any sarcasm or insincere solicitous comments.  

14. Identify and explain what items which are privileged – Another classic
question to unnerve a witness t that attorneys will often use is, “Have you talked too anybody  about this case?” Sometimes, a witness will think that they’ve done something wrong by  discussing their testimony in advance. The expert should be put at ease that there is nothing  wrong with preparing for their deposition or meeting with you in advance. In fact, most jurors  expect attorneys to meet with their witnesses, in order to properly prepare for trial or a  deposition. Discussions with counsel are privileged as work product because they are  communication with counsel. See Fed. R. Civ. P. 26(b)(4)(C). If the question is posed by  opposing counsel and you fall asleep at the switch, you want to make sure that your expert seeks  a clarification as to whether the attorney is, “Asking for information discussed with counsel.” If  your expert has discussed the case with other persons, you want to identify this well in advance  of the deposition. Some experts, especially teaching experts, will discuss pending cases during  their lectures. I can recall one case where this occurred and the expert was impeached at trial  with tape recordings of his lecture with devastating effect. Loose lips sink both ships and cases.  

15. Review all evidentiary foundations – You should review the appropriate
foundational requirements for the admission of any records, tests, or other analysis which is not stipulated to by the opposing party. Remember under Rule of Evidence 703, your expert can
consider matters outside the evidentiary record at trial in reaching his opinion.

16. Standard of proof or level of confidence required – this distinction has
somewhat dissipated. However, a number of judges are still requiring use of the magic words.
Typically at the beginning it make sense to asked that you expert give his opinion in the case
based upon a reasonable degree of medical or scientific probability unless instructed otherwise.
Caution your expert to avoid using the phrase “possible” since it is legally meaningless.  

 
17. Reliance on materials outside of the court record. The facts or data in the  particular case upon which an expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. Experts may testify to opinions based on  inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the
field. Federal Rule of Evidence 703. Typically, I would ask the expert ‘if in reaching his  opinions and conclusions in this case, did he use only materials reasonably relied upon by  persons in his field?  

 18. The Subpoena Duces Tecum Trap – Make sure any subpoena is dealt with well
in advance of the deposition. You should personally review with your expert all items sought
and insure nothing is “lost” or destroyed which is in existence at the time the subpoena is issued.
A privilege log should be prepared for any items withheld and a motion for protective order
sought if agreement cannot be reached on how to handle the subpoena. Blanket claims of  privilege are not favored. The party seeking to avoid discovery has the burden of establishing the
essential elements of the privilege being invoked. United States v. Lawless, 709 F.2d 485,  487(7th Cir.1983). The claim of privilege must be made and sustained on a question-by-question
or document-by-document basis. Id., citing United States v. First State Bank, 691 F.2d 332,  335(7th Cir.1982); Matter of Walsh, 623 F.2d 489, 493 (7th Cir.1980), cert. denied, 449 U.S.
994, 101 S.Ct. 531, 66 L.Ed.2d 291. Spoliation of evidence by your expert in response to a  subpoena can lead to sanctions, a contempt citation and an adverse instruction to the jury.  Spesco, Inc. v. General Elec. Co., 719 F.2d 233, 239 (7th Cir. 1983); see also Adkins v. Mid- America Growers, Inc., 141 F.R.D. 466, 473 (N.D. Ill. 1992) (“In cases where evidence has been
intentionally destroyed, it may be presumed that the materials were relevant.”).  

19. Give the shortest accurate answer… Remember a deposition is not a
conversation – The purpose of a discovery deposition is to learn as much as one can about the
opposing expert. When answering a question give the shortest accurate answer. Explain only
when asked. Do not ramble. Repeat after me: A deposition is not a conversation. A deposition
is not a conversation. A deposition is not a conversation! 

Run through these points with your expert so he can avoids the “traps” of litigation and not end up stuck in the “sand.”

Proper Objections at Your Expert’s Deposition

 
Palais de justice historique de Lyon, France

Objections should be kept to a minimum. The Rules contemplate that
objections should be concise and afford the examiner the opportunity to cure the objection. See Fed. R. Civ. P. 30(c)(2) (noting that “objection[s] must be stated concisely”); id., Advisory
Committee Notes (1993 Amendments) (noting that “[d]epositions frequently have been unduly  prolonged . . . By lengthy objections and colloquy” and that objections “ordinarily should be  limited to those . . . grounds that might be immediately obviated, removed, or cured, such as to
the form of a question”). Rule 30(c)(2) provides:  

Objections. An objection at the time of the examination—whether
to evidence, to a party’s conduct, to the officer’s qualifications, to  the manner of taking the deposition, or to any other aspect of the  deposition—must be noted on the record, but the examination still  proceeds; the testimony is taken subject to any objection. An  objection must be stated concisely in a nonargumentative and  nonsuggestive manner. A person may instruct a deponent not to  answer only when necessary to preserve a privilege, to enforce a  limitation ordered by the court, or to present a motion under Rule  30(d)(3).  

The Notes to the Advisory Committee for the Amendments of 1993 state that “[w]hile objections
may, under the revised rule, be made during a deposition, they ordinarily should be limited to
those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on
grounds that might be immediately obviated, removed, or cured, such as to the form of a  question or the responsiveness of an answer.” Rule 32(d)(3)(A) & (B) state specifically which  objections must be made or waived:  

(A) Objection to Competence, Relevance, or Materiality. An
objection to a deponent’s competence—or to the competence,  relevance, or materiality of testimony—is not waived by a failure  to make the objection before or during the deposition, unless the  ground for it might have been corrected at that time. 

(B) Objection to an Error or Irregularity. An objection to an error
or irregularity at an oral examination is waived if:  

(i) it relates to the manner of taking the deposition, the form of a
question or answer, the oath or affirmation, a party’s conduct, or  other matters that might have been corrected at that time; and  

(ii) it is not timely made during the deposition. [Emphasis Added].

The Rules should be abided by during the course of the deposition.

Form objections. While unspecified “form” objections are certainly concise, they
do nothing to alert the examiner to a question’s alleged defect. Because they lack specificity, “
form” objections do not allow the examiner to immediately cure the objection.  

Permissible objections. If an objection could have been obviated at the time of
the deposition and it is not made, it is deemed waived. The only objection you should make are “insufficient foundation”, “compound”, “argumentative”, “asked and answered,” and “work
product privilege” or “attorney client privilege.” All other objections are available and can be
raised at a later time.
Below is a list of potentially impermissible objections (check your jurisdiction):  

1. Speaking Objections. Speaking objections are not allowed and can draw
sanctions. Your objection needs to be short and concise.  

2. No right to consultation. A witness has no constitutional right to consultation
while testifying. Perry v Leake, 488 US 272 (1989).  

 3. Recesses. It has been held a deponent has no right to consultation during
depositions and during recesses. Hall v Clifton Precision, 150 F.D.R. 525 (E.D. Penn. 1993).  

 
4. Communications during recesses. There is no attorney client or work product
privilege for discussion between attorney and deponent during recesses. You can ask what they
talked about. Id.  

 
5. Questions by Defending Counsel. An attorney cannot state on the record their
interpretation of a question asked. Hallsupra.  

 
6. If you know or if you understand is a speaking objection (coaching). Suggestions such as
“if you know” or “if you understand” are raw unmitigated coaching and never appropriate.
Serrano v Cincinnati Ins. Co., 2012 WL 20871 *4. (Kansas)  

 
7. Calls for speculation. Objections to “speculation” are not form. It’s also
coaching. Serrano, supra.  

 8. Vague Objection. Saying a question is “vague” is improper speaking objection.
Serrano, supra. Likewise, a lawyer cannot object saying he/she didn’t understand the question.
Hall, supra.

 
9. Multiple objections. Rambo-like multiple objections prohibited. In Re
Stratosphere
, 182 F.R.D. 614 (D. Nev. 1998).  

10. Excessive number of objections. Excessive number of objections is
sanctionable. Fed. R. Civ. P. 30(d), Committee Notes 1993.

Discovery, Privacy, Personal Freedom and Social Media

I don’t see myself as a hero because what I’m doing is self-interested: I don’t want to live in a world where there’s no privacy and therefore no room for intellectual exploration and creativity. 

Edward Snowden

There is an assault on our privacy.  We need look no further than headlines involving Russian hacking of our government and political institutions such as story reported by The NY Times today. The assault on our client’s privacy is also underway as part of the civil discovery process.  Attorneys now seek to rummage through a client’s social media accounts and demand usernames and passwords to accomplish this invasion of privacy without any factual basis or good cause.

Fishing expeditions are not allowed. Here is the objection I use:

Objection, this request is overly broad and unduly burdensome. See Ind. T.R. 26(B)(1). Further, this request is non-specific and calls for a general fishing expedition which is prohibited under Indiana law in violation of the reasonable particularity requirement of Ind. T.R. 34(B). See Canfield v. Sandock, 563 N.E.2d 526 at 529-531(Ind. 1991). The simple fact that a claimant has had social communications is not necessarily probative of the issues in this case.  See Rozell v Ross-Holst,2006 WL 163143 (S.D.N.Y. Jan. 20, 2006).  There is no general right to have access to an entire Facebook account and such a request is no different than requesting the right to search through a party’s entire house, office, or wherever making the request a “fishing expedition”.  See also, McCann v. Harleysville Ins. Co. of New York , 78 A.D.2d 1524 (N.Y. A.D. 2010)(Defendant “failed to establish a factual predicate and essentially sought permission to conduct a fishing expedition into plaintiff’s Facebook account based on the mere hope of finding relevant evidence which is not allowed); Tompkins v. Detroit Metro. Airport, No. 10-10413, (E.D. Mich. Jan. 18, 2012)(Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view and engage in the proverbial fishing expedition, in the hope of finding something on a Facebook account.).

Social media may be discoverable “specifically “, but certainly should not be invaded “generally”. Privacy matters to us all and must be honored even in this day of pervasive electronic communications and connections.

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