Category Archives: Rule 32
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.”
Guarding Your Expert from Aggressive Counsel
Preparation is your greatest tool to avoid problems caused by difficult or agressive
attorneys. Ultimately, once you are at the deposition there is little you can do without risking
sanctions. Harassing behavior. If an attorney engages in ongoing harassing behavior which
is truly beyond the pale, call the magistrate of court and have a discovery conference. However,
make sure it is truly exceptional.
As mentioned earlier, your best tool to control the deposition is to prepare your expert. If
truly extraordinary harassment or name calling occurs and persists even after you have addressed
it on the record, and the Court is not available to resolve your dispute, you can move to terminate
the deposition. Rule 30(d)(3) of the Federal Rules of Civil Procedure allows a litigant to suspend
a deposition at any point for the purpose of filing a motion to terminate or limit the deposition on the grounds that it is “being conducted in a manner that unreasonably annoys, embarrasses or oppresses the deponent or the litigant.” Obscenity or insults, persistent questioning that embarrasses a witness or concerns privileged matter are sufficient grounds for suspending or terminating a deposition. See Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007); Lewis v. United Air Lines Transp. Corp., 32 F. Supp. 21 (W.D. Pa. 1940); Broadbent v. Moore-McCormack Lines, 5 F.R.D. 220 (E.D. Pa. 1946); Shapiro v. Freeman, 38 F.R.D. 308 (S.D.N.Y. 1965).
If a suspension is sought, the deposition remains postponed until such time as the court issues an
order. The loser is subject to fees and sanctions under Rule 37(a)(5). Smith v. Logansport Community Schools Corp., 139 F.R.D. 637 (N.D. Ind. 1991).
The Case Against Experts in the Courtroom
“If you can’t explain it to a six year old, you don’t understand it yourself.” Albert Einstein
I have always thought it is unclear whether Indiana Rule of Evidence (IRE) 615 applies to depositions. IRE 101(C) states:
Rules Inapplicable. The rules, other than those with respect to privileges, do not apply in the following situations:
(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).
(2) Miscellaneous proceedings. Proceedings relating to extradition, sentencing, probation, or parole; issuance of criminal summonses, or of warrants for arrest or search, preliminary juvenile matters, direct contempt, bail hearings, small claims, and grand jury proceedings.
Interestingly enough, no mention of depositions is made in the proceedings excluded.
Ind.T.R. 30(C) states in part:
Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 43(B). *** All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. When there is an objection to a question, the objection and reason therefr shall be noted, and the question shall be answered unless the attorney instructs the deponent not to answer, or the deponent refuses to answer, in which case either party may have the question certified by the Reporter, and the question with the objection thereto when so certified shall be delivered to the party requesting the certification who may then proceed under Rule 37(A).
Ind. T.R. 32(B) states:
Objections to admissibility. Subject to the provisions of Rule 28(B) and subdivision (D)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any depositions or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
* * *
(D) Effect of errors and irregularities in depositions
(3) As to taking of deposition.
(a) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(b) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition. ***
Ind. T.R. 43(B) then reads:
Evidence on motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.
My take away from all of this is that if you want to use the deposition at trial or in connection with a motion for summary judgment, then the rules of evidence would apply. Also, if you do not object to the presence of the expert at the time of the deposition pursuant to IRE 615 the objection is waived because it could have been obviated by the opposing attorney by ordering the expert to leave. If the opposing attorney disagrees then you would have to hope you win the issue at trial or stop the deposition and immediately file a motion to terminate under Ind. T.R. 30(D). As a result, I would think a court would find IRE 615 applicable to a deposition.
That being said, I think having an expert present to aid you in examining another expert would usually be “a person whose presence is shown by a party to be essential to the presentation of the party’s cause” under IRE 615(C). In Ledden v Kuzma, 858 N.E.2d 186 (Ind.Ct.App.2006), the Kuzmas sought a protective order barring Ledden’s expert from attending Ledden’s deposition of the Kuzmas’ expert witness. The Court of Appeals stated:
Under appropriate circumstances, it may be proper for a protective order to be granted barring an expert -or anyone else – from attending the deposition in question. If a party is able to meet the requirements of Trial Rule 26(c)(5), then a protective order would be warranted. But if, as here, a party is unable to provide any particular and specific demonstration of fact in support of the request for a protective order, then there is no reason – based in logic or rule – to bar the expert from attending the deposition.
Generic allegations of prejudice were made in Ledden v Kuzma. A factual demonstration supported by evidence of real harm seems to be required given the holding in Ledden v Kuzma.
Trial is a different thing. The argument for the a separation of witnesses is weaker at the discovery stage since you may need the help of your own expert to pin someone down at the pretrial discovery stage whether investigation is needed. While IRE 615(C) does allow a party to designate a person whose presence is essential to their presentation to be present in the courtroom, this creates practical problems and raises concerns about “fairness in administration” and “the end that the truth may be ascertained and proceedings justly determined.” See IRE 102 Purpose and Construction.
When I had this occur in a trial, I successfully argued that the defense expert is not allow to watch the trial and weigh evidence as this is the sole province of the jury. IRE 702(A) states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Allowing expert to attend the trial and opine is a kin to having a shadow jury. Such a process misleads the jury as to an expert’s true role which is to aid the jury in deciding the case, not supplant them. Trial testimony by the expert could run afoul of Rule 704(B) since the expert would in essence be testifying as to whether a witness (including your expert) testified truthfully by opining after watching all the witnesses testify. Also, Ind.T.R. 26 requires that the basis and opinion of an expert be seasonably disclosed before the trial. An expert’s opinion would change and morph as the trial progressed. The expert, not the jury, would resolve questions of fact, credibility and the weight to be given witness testimony and items of evidence. Such expert testimony could impair or deprive a party of their constitutional right to trial by jury.
So, what do you think?