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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.”

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).

Litigation Against an Organization: Why you need to do a Rule 30(B)(6) deposition.

If you are suing an organization, it is important that you familiarize yourself with the provisions of Rule 30(b)(6).  Rule of Procedure 30(b)(6) provides in pertinent part:

Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

The organization (not you) has the obligation of designating the person or persons needed to adequately answer the questions posed in the various designated areas you wish to ask questions.  You as the deposing party have the burden of meeting the “reasonable particularity” requirement of adequately designating the subject areas of questioning.  The statements given by the person(s) designated by the organization bind the organization as an admission of a party-opponent.

This is not necessarily the case when a statement is given by a low-level employee who is not a “member of the limited liability company”  or officer/director of a corporate organization  since their statements only bind the organization if they are:

1) made within the scope of their authority and

2) the person is still employed and has a relationship with the organization.

Under Rule of Evidence 801(d)(2), “non-hearsay” for the “admission of a party-opponent” is defined as follows:

(d) Statements which are not hearsay. A statement is not hearsay if –

*   *   *

(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the party’s agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

A Rule 30(b)(6) declarant/deponent’s answers to questions during the deposition are considered a “statement by a person authorized by the party to make a statement about the subject“.  The organization can only authorize such a statement if the area of questioning has been identified in the deposition notice.  The trick is to make sure your designation of the areas of questioning is specific enough to cover the questions you wish to pursue during the deposition.  Otherwise, the organization is free to argue that they were not authorized to make the statement and bind the organization.  One caveat to this point, is that the organization likely has a duty to raise the objection at the time of the deposition if the problem could have been obviated at the time of the deposition by making a clarification in the question. Rule 32(d)(3)(A) states that “[a]n 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.”

If the opposing party designates the wrong person or fails to prepare them they risk possible discovery sanctions and ill-considered and ill-conceived answers to critical questions in the litigation.    The burden is on the organization to properly prepare and name as many people needed to answer your questions.  It is kind of like obtaining requests for admissions from your opponent on the fly.  It can be very powerful tool you can use to box in your opponent.

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