Published in Los Angeles Lawyer, November 2004
In the vast majority of circumstances, your deposition results can be improved by adding a few questions that usually challenge expert witnesses. Consider the following practical advice gleamed from hundreds of actual depositions.
These questions should be modified slightly depending upon your deposition strategy. Before the deposition begins, determine whether you plan to use the deposition for persuading your opponent to settle, or to prepare for trial? Whatever strategy you adopt will involve tradeoffs. For example:
- If you aggressively cross-examine during the deposition, you may get exact admissions and a better chance of settlement. However, you will also show your attacks, which will allow your opponent to create responses between the deposition and trial. This is particularly troubling with experts, who presumably are required to modify their opinions as new information is learned.
- If you just ask for the expert’s opinion and the basis for the opinion, your opponents are more likely to remain unaware of their vulnerabilities. However, you will also lose opportunities to obtain valuable concessions.
Since the deposition is your time to learn, ask plenty of questions that you would never use at trial. Most examiners make insufficient use of open-ended questions that force the witness to explain what work was done, and the rationale for the conclusions. Questions that demand a yes/no response should be limited to areas where you already know, or specifically wish to clarify, the expert’s conclusion and rationale.
Questions that start with who, what, where, when, why, and how will generate information that you would never get with questions that demand a yes/no response. Simple follow-up questions that will almost always work include “How do you know that?”, or “Why is that true?”
Ask questions that elicit limitations in, or concerns with, your opposing expert’s work. Examples include:
- What assumptions did you make?
- What is the factual basis for this opinion, and how do these facts lead to your conclusion?
- What information have you relied on that was provided by counsel or your client?
- What concerns do you have regarding your conclusions?
- Under what circumstances would you use a different methodology?
- What alternative hypotheses could explain what you observed?
- What other work would you have liked to have performed?
Use your expert to assist with the deposition. If you’ve hired the right expert, she will be able to provide years’ worth of insights and understanding. However, do not let your expert complicate the deposition with details that the jury will not understand. Instead, look for key points of underlying disagreement that alter your opponent’s entire conclusion.
Use hypothetical questions to move an expert witness off the established script that your opposing counsel is presenting. Hypothetical questions can turn an opposing expert into your witness when a different set of facts are presented. Hypothetical questions can also be used to support the positions of your other witnesses or positions. Similarly, reverse psychology is sometimes the best way of isolating a witness. Test the limits of how far the opposing expert will go to support the untenable. Isolate and discredit an extreme witness by taunting him into taking positions that most will see as being silly.
Most depositions take proportionately too much time on the expert’s background. Unless the expert is truly inexperienced in the relevant field(s), many background questions can be covered by simply having the expert agree that his resume or CV is accurate. However, you should spend time looking for areas where the current testimony contradicts or is impeached by:
- Authoritative works in the field – Get the expert to acknowledge which works are authoritative.
- Texts that the witness uses as references, or in classes taught by the witness
- The witness’s testimony in other matters – Some of this can be obtained through databases that provide such information for a fee.
- The witness’s writings – The internet is useful for obtaining this and other background information.
These same questions can also help your expert to prepare. Review the above areas with your expert well in advance of her deposition. Allow sufficient time for your expert to perform whatever additional work is cost-justifiable to remedy the problems that you uncover.
David Nolte is a principal at Fulcrum Financial Inquiry LLP with over 28 years of performing forensic accounting, auditing, business appraisals, and related financial consulting. He regularly serves as an expert witness.