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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.”

How to Avoid Bad Questions and Answers

Helping your client refresh their memory regarding facts pertinent to the case is just the beginning of your job in preparing your client to testify at their deposition. You also need prepare your client for problem areas of questioning.

20110903-043224.jpgThe following is a list of problem questions and how to deal with them during the course of a deposition of your client:

. 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?

. Summary Questions
Another classic approach to the compound question is to summarize a client’s prior testimony, and then ask at the tail end a yes or no question. Clients 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 client on these problems as well, in case you fall asleep at the switch.

. Questions in Absolute Terms
Questions cast in absolute terms can also be a problem. Whenever an attorney uses such terms as, “Do you always” or, “Have you never,” they are attempting to lock your client 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 client 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 a client and backing them off of their testimony. The point is, make sure if you answer in absolute terms, that you’re absolutely correct.

. 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 client 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.

. Exaggerations
Do not exaggerate: Don’t take a good case, try to make it a great case, and turn it into a bad case. The first rule I learned when I began doing defense work from the senior partner at the firm I was at was to let a Plaintiff exaggerate all they want. There is nothing that more quickly undermines a claim or gives rise to the all-popular defense mantra of “secondary gain” than needless exaggeration. This is why reviewing a client’s medical records with the client in advance is imperative.

. Opinions
Be careful of giving opinions, as they are the doorway to guess and speculation on the part of a client. If a client starts to guess and speculate, the next thing you know, they are giving inconsistent answers or violating the rules of physics. As Sgt. Friday in Dragnet said, “Just the facts, ma’am, just the facts.” This should be your mantra to your client as well. Stay factual! Do not guess, and do not speculate. You do not have to have an answer to every question. Remember you are a “human being, not a computer.”

. “Would It Be Fair to Say…”
Usually when an attorney begins a question with, “would it be fair,” it is absolutely unfair to your client. Anytime a client hears a question prefaced with such a line, they should make sure they in fact agree with the proposition set forth in the question.

. Narrative Questions
Defense attorneys will often ask, “Tell me everything that’s still a problem.” The difficulty with this question is that a client can forget important details of their injuries or losses when asked to simply list everything under the sun without any other prompting. While you can object to the form of the question on the grounds that it calls for a narrative, your client ultimately will probably have to answer it. It is important to review in advance all areas of losses and damages with the client to ensure that that do not forget anything. Your client should be prepared to answer at the end of their list that that’s all they can recall at the moment. This allows you to clean the topic up on cross, or later through the signature process where your client is allowed to review their deposition before it is sealed.

. “How Much Is Your Case Worth?”
This is a question that I have used with Plaintiffs, and oftentimes catches them totally off guard. Ultimately, I think the best response is to say that I’m not an expert in evaluating these sort of things, and am trusting my attorney’s best judgment, as well as that of the jury. To actually provide a dollar amount can make your client appear greedy, and be used to prove motive for secondary gain.

. Other Trick Questions
Another classic question to unnerve a witness or a client that attorneys will often use is, “Have you talked too anybody about this case?” Sometimes, a client will think that they’ve done something wrong by discussing their testimony in advance. The client 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 clients, as well as witnesses, in order to properly prepare for trial. Obviously, your client has talked to you, and such information is privileged. If the question is posed by opposing counsel and you fall asleep at the switch, you want to make sure that your client seeks a clarification as to whether the attorney is, “Asking for information discussed with counsel.” If your client has discussed the case with other persons, you want to identify this well in advance of the deposition, so that you don’t have to deal with needless prior inconsistent statements.
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Deposition Preparation Begins Long Before the Deposition

An important aspect of your case is your client’s deposition. A case’s value turns on the credibility and likeability of your client. As a former insurance defense attorney, the most important aspect to the evaluation of a case’s value was the deposition of the Plaintiff. Oftentimes, insurance companies are reluctant to make any significant offers of settlement prior to the client being deposed. Your client’s credibility impacts what value, if any, a jury will attribute to subjective complaints. Preparation is not something that should be overlooked or left to chance.

20110903-043224.jpg

. 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.

. Prepare a Medical Chronology
Clients are often ill-equipped based upon education and background to review and analyze their own medical records. By providing your client with a detailed medical chronology ahead of their deposition, they have an opportunity to refresh their memory regarding past illnesses and injuries, and avoid making misstatements at the time of their deposition, or worse, at the time of trial. In addition, by reviewing the past medical chronology with your client, you can address responses to the resolution of prior symptoms and/or problems.

. Review Criminal and Traffic Citation History
As the credibility of your client is a paramount concern, it is important to investigate your client’s own criminal and/or traffic citation history. Under Indiana Rule of Evidence 609, crimes of dishonesty or those which are inherently dangerous can be used for purposes of impeachment at trial. Likewise, evidence of prior traffic citations can help identify prior auto accidents and other relevant information. The failure to truthfully admit such information leads to easy impeachment material, which can undermine your case’s value.

. Prior Lawsuits and Claims
It is important to promptly identify any prior litigation your client may have been involved in as a litigant. 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 client is a liar. The prior litigation also provides background information on your client, as well as claims of pre-existing injuries.

. Prior Motor Vehicle Accidents
This is another area which is easily verified and can provide fertile grounds for purposes of impeachment, as well as help a defense attorney develop alternative causes for your client’s injury. Oftentimes, clients will forget more minor injuries and motor vehicle accidents, to their detriment. This lack of recollection by your client will be interpreted as an outright obfuscation of the truth. There is nothing worse or more expensive than finding out for the first time at trial that your client has failed to disclose that which is undeniable. A source that can be utilized to find prior accident in the Indianapolis metropolitan area is:
http://www.indystar.com/data/public_safety/accidents.shtml

. Review Your Client’s Answers to Interrogatories and Discovery Responses for Accuracy and Completeness Prior to the Deposition

Assuming you have followed through on the other matters outlined above, you want to double-check your client’s answers to Interrogatories prior to the deposition so that you can identify and correct any mistakes prior to the time your client is deposed. If there are any inconsistencies or mistakes, and you bring them forward, it takes the sting out of the incorrect answer prior to the deposition and verifies that your client is interested in the truth. Two inconsistent statements under oath as to any material matter is arguably perjury.

. Witness Statements
Review any other witness’ statements with your client to avoid needless inconsistencies. If there are inconsistencies, identify those, and make sure that you have a plausible explanation for the discrepancies.

. Don’t Violate the Laws of Physics
A favorite tactic of a defense attorney is to detail a client and show that their version of the events is physically impossible for one reason or another. Everyone has probably heard the story of how Abraham Lincoln won an acquittal as a result of having a witness for the state indicate that they were able to see the defendant in the moonlight, only to later learn that there was a new moon that night.

Likewise, in an auto accident, defense attorneys will often ask how far away a vehicle was when the Plaintiff began some maneuver. They will then ask the Plaintiff how long it took them to do the maneuver, and see if the answers are plausible and can be consistent. For example, if your client says that the other vehicle was ¼ mile away when they began their turn, and that they completed their turn in 1-2 seconds when the collision occurred, they now have made the offending driver the fastest qualifier in Indy race car history. It is important to go through the details with your client ahead of time, and make sure their estimates of time, speed and distance are internally consistent. In this regard, it is important to remember a basic formula: Miles per hour x 1.47 = feet per second

Other areas to check which are readily verifiable are things such as the weather conditions at the time of the accident, the physical locations of objects and buildings, and when applicable, the duration of traffic lights.

. Have Your Client Revisit the Scene of the Accident
As noted above, it is important to make sure that both you and your client have a clear understanding of the physical layout of the accident scene. If at all possible, you should travel to the scene of the accident with your client and review the events and location where the events unfolded. If this is not possible, an acceptable substitute is to conduct a virtual tour of the accident scene utilizing Google Maps and its aerial and street views.

I will dicuss other aspects of deposition preparation in upcoming posts.
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