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Taking an ‘Expert’ Witness’ Deposition
By Robert D. Hart and Christopher D. Wolek

An effective litigator must be able to adapt. One must adapt to the witness, to the judge and to the jury—no matter what may arise. The deposition of an expert is no different. The witness might be timid and shy, having only given three other depositions and never having been before a jury. Contrast that deposition to the examination of the “hired gun” who is a veteran of 225 depositions and has testified in trial 100 times. The former deposition presents the opportunity to obtain useful admissions through a process akin to cross-examination. In the latter, the average to above-average attorney should concentrate on a fundamental virtue that should be passed on to every young lawyer: “Impeach their expert and win the case with your expert.” Thus, the goal in questioning the “hired gun” is to gather as much information from them to use as an effective counter-punch at trial.1

How do you effectively counter-punch at trial with an expert witness’ deposition? The answer is relatively simple: hard work and creativity. Learn enough about the science (whether medicine or another technical specialty) so you are not buffaloed during the deposition. Good experts testifying solely about their specialty can outwit attorneys as a matter of course. That is why attorneys pay them good money to explain scientific, technical and other specialized fields to the jury. Therefore, the first rule for an expert deposition is simple - prepare, prepare and prepare some more. Study the scientific or technical field as much as you can. In the case of a physician, pore over the pertinent medical records until you have complete command of them before the deposition. Know your case including the law regarding expert testimony so you can maneuver on the fly if an opening arises.

Experts “buffaloing” attorneys leads to a second virtue to consider when deposing experts: Never take an expert’s word for granted. The word “expert” is quoted in the title of this article for a reason. In the vast majority of cases, the expert sitting across from you is just another advocate for your opponent. They are hired to express their “opinions” about the case. Experts will lurk in gray areas because “opinions” are seldom either “right” or “wrong.” Experts are flexible and malleable and this often opens them up to impeachment. This is not easily accomplished, as experts would quickly become dinosaurs if they were to cave to the most elementary cross-examination.

The fact that most cases do not result in a trial underscores the importance of exposing the opponent’s expert as an advocate during their deposition. Some attorneys believe expert work (both preparation of your own and deposing the other’s) can only be done while holding their nose. For others, experts are a necessary part of the challenge when it comes to winning the case. Regardless of the philosophy, you can hardly go wrong by approaching the expert’s deposition with the basic premise that they are all full of baloney. Pardon the vernacular, but that basic premise reflects the reality that experts typically are highly compensated advocates. Exceptions do exist, but they are a rare bird. For example, some treating physicians will not advocate on behalf of their patients, but even that is a dying breed. No professional expert witness is worth his or her exorbitant fee unless their opinions are somewhat “malleable,” and it is the malleability of the expert that good attorneys can expose during a deposition.2

Start with the basics — remember that as with any other witness, laying the foundation is the key to a successful expert deposition. Begin with a comprehensive set of written discovery requests regarding your opponent’s experts. Utilize an interrogatory under 12 O.S. § 3226(B)(1) requesting the name and address of any expert to be called. If the opposing party follows the Discovery Code, you will garner the name of their expert either immediately or when they timely supplement as required by 12 O.S. § 3226(E)(1)(b). An interrogatory following 12 O.S. §3226(B)(3)(a)(3) allows discovery of “the subject matter on which each expert witness is expected to testify; the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion; the qualifications of each expert witness, including a list of all publications authored by the expert witness within the preceding 10 years; the compensation to be paid to the expert witness for the testimony and preparation for the testimony and a listing of any other cases in which the expert witness has testified as an expert at trial or by deposition within the preceding four years.”

In this same vein, a request for production should follow seeking each document or resource reviewed by the expert. Under § 3226(B)(3)(a)(2), if your adversary provides documents to a disclosed expert witness, those documents lose work product protection and it waives any privilege associated with those documents.3 It is often surprising the types of privileged information that is mistakenly given to experts with the thought that some non-existent privilege applies. Although it only happens every now and again, a request for production with some follow-up questions to open the deposition can unearth an errant letter or e-mail disclosing some strategy or other privileged information that the other side would rather be kept hidden.

When it comes time for expert depositions, the better practice is to reach an agreement with opposing counsel that every expert will bring all documents received, reviewed and generated by the expert to their deposition. Your adversary should have already provided this information in response to a proper request for production described in the preceding section, but it never hurts to cover all the bases. In terms of notice, the typical practice does not include issuing a subpoena to an expert. From a literal reading of 12 § 3226(B)(3)(a)(2) it appears that a notice should be issued, but the law is not clear if the notice is sufficient to compel an expert to attend a deposition. Presumably, however, an attorney who fails to cooperate with scheduling their own experts would have a hard time surviving a motion to strike due to discovery abuse.

In terms of costs, Oklahoma law dictates that if you want to depose the opposing party’s expert, your client is going to have to pay for it. 12 O.S. § 3226(B)(3)(c). If the amount the expert charges is unreasonable, an attorney can seek court intervention to assess a “reasonable” fee.4 This issue tends to arise with either exorbitant hourly rates or an unreasonable “minimum” numbers of hours.

As previously mentioned, an expert deposition must be approached from the standpoint that the expert will not tell the truth. Just like a good reporter tackles a story, an attorney should ask the expert seven essential questions regarding every topic: who, what, when, where, how, why and how much? Furthermore, these questions will always give you a general outline that you can build upon during the deposition.

For instance, if the opposing expert has done a site inspection, expanding on the seven essential questions would give you a plethora of information:

When did you go? Why did you go? Why did you go on that date? Where did you meet? Where all did you go? Who was there with you? Who did you speak with at the scene? (With whom did you speak?) Who did you speak with the three days before and three days after?

What did you review before you went? What did you and (anyone listed above) talk about?

What did you do at the scene? Why did you do each of those things? How did you do each of those things? What authority did you rely upon to determine that was the proper technique?

How much time did you spend at the scene? How much were you compensated for going to the scene?

Until comfortable conducting expert depositions, there is no shame in writing those seven questions at the top of every page of an outline to emblazon them in the interrogator’s mind. Of course, depending upon the answer to any of the above examples, you might be looking at 30 minutes of deposition time.

The remainder of the article offers a brief outline to use when conducting a deposition. This general outline and the specifics have been included because many attorneys fail to get answers to the questions listed. The primary thing to remember for the new practitioner is that the outline should be tailored to your particular case. This is merely a starting place for an effective deposition.

As a general rule, do not try to challenge the credentials of the expert you are deposing. Instead work on getting information that will assist you with impeaching the expert at trial. From your pre-deposition preparation, have you learned that the expert has a mail-order doctorate? Remember that all you need to do is get the facts to confirm that the degree is from the sham institution and then you are free to discredit them with it at trial.

Along those same lines, be careful about qualifying the opponent’s expert for trial. Try and take the expert’s deposition so that it cannot be used against you if the expert somehow becomes unavailable for trial. If the expert was not qualified during your examination or during the cross, use of his or her deposition will be virtually impossible. In this regard, it is usually better not to even mark the curriculum vitae during a deposition. You should not neglect to ask an expert what his or her “claimed” areas of expertise are.

The principal safeguard against errant expert testimony, as with all other witnesses, is the opportunity to cross-examine, which includes the opportunity to probe bias, partisanship or financial interest. The following questions provide a framework for doing just that.

A good expert deposition is a thorough expert deposition. Take your time and get each opinion and conclusion in detail. Recall that an expert witness opinion is not admissible unless it will assist the trier of fact to understand the evidence or to determine a fact in issue. 12 O.S. § 2702. Ask the seven questions relentlessly until it is clear that the expert’s opinion will not help the jury understand the evidence or determine the facts in issue.

The expert has to be pinned down before you walk out of the room. The worst mistake to make with an expert is to allow him or her to squirm out of an opinion at trial because of a question not asked at deposition. It is never effective to impeach an expert at trial by pointing out that the testimony has changed when the response to the question is, “You didn’t ask me that.” Always ask for all of the opinions the expert has and get a laundry list. At that point, repeat them back to the expert and ask if those are all of the opinions. If not, get the others. Only then will they be sufficiently “boxed in” for cross-examination at trial.

Also, make sure you do not get buffaloed. You have to understand the opinion as well today as you will at trial or you will be in trouble. Almost every expert will try to give double talk answers during depositions. Only the effectively prepared and thorough attorney can prevent this situation with a firm grasp of the science involved.

One of the goals in an expert deposition is setting up a motion to strike the expert or to strike a significant portion of his or her opinions. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993),5 the United States Supreme Court suggested four nonexclusive questions for judges to consider when admitting scientific evidence:

In this regard, there are several red flags6 that one should be aware of when conducting an expert deposition in order to properly support a Daubert/Chrisitan motion:

With hard work and a little creativity, you can set up an expert for a fall at trial. Make sure to follow up on any of the leads you get regarding other attorneys for whom the expert has worked as well as other opinions given. Review the literature, if any, that the expert relied upon. Ask your expert whether there is material contradicting the opposing party’s expert opinions. And if you have done all of this, you are on the road to effectively cross-examine an expert at trial.

1. This, of course, excludes the “lucky moment” that happens to all attorneys at one time or another where in a deposition he or she looks brilliant simply due to luck. There is no reason to bore the reader with war stories or lull the new attorney into a false sense of security that “luck” will strike during each and every expert deposition.
2. As a fundamental matter, it is somewhat questionable whether the concept of the “expert witness” is good for the adversarial system as a whole or whether it has degenerated into some kind of perverted jousting match. By outlining a few ways to play the game, this article does not delve into the application (or non-application) of Daubert by courts in general.
3. See, e.g., J.B., ex. rel Palmer v. Asarco, Inc., 225 F.R.D. 258, 261 (N.D. Okla. 2004) (reaching same result under Fed. R. Civ. P. 26 (a)(2)(B)).
4. Fuller v. Pacheco, 21 P.3d 74, 81 (Okla. Civ. App. 2001); Drake v. Wal-Mart, Inc., 876 P.2d 738, 742-43 (Okla. Civ. App. 1997).
5. The Oklahoma Supreme Court adopted the Daubert standards in Christian v. Gray, 65 P.3d 591, 598 (Okla. 2003).
6. These “red flags” are taken from Downs v. Perstop Components, Inc., 126 F.Supp.2d 1090, 1127-1128 (E.D. Tenn. 1999).

Robert Hart is a shareholder at Gibbs, Armstrong, Borochoff, Mullican and Hart, P.C. A significant portion of his practice is focused on the representation of railroads in litigation and administrative actions throughout Oklahoma. He received his J.D. from The University of Oklahoma College of Law. He is an active member of the National Association of Railroad Trial Counsel.

Christopher D. Wolek graduated with honors from the University of Oklahoma College of Law in 1995. He is a shareholder with the Tulsa law firm of Gibbs Armstrong Borochoff Mullican & Hart, P.C. and is admitted to practice in Oklahoma and Texas. He is the head of the firm’s research and writing department and actively practices in the areas railroad litigation and health care law.

Taking an ‘Expert’ Witness’ Deposition
Published 79 OBJ 537 (March 8, 2008)