The deposition of an expert witness is the culmination of the opposing party’s defense or prosecution theory of the case. Before taking an expert’s deposition, the parties should have completed fact discovery-interrogatories answered, documents obtained, lay witnesses deposed. Presumably, your opponent’s expert witness has been advising the opposing attorney about documents to be requested in the course of written discovery and about oral discovery questions that should be asked of the lay witnesses, so that the fact evidence necessary to the expert’s opinions has been established. The expert’s opinions are being offered by the opposing party as part of a plan to defeat your case. Deposing your opponent’s expert witness is your opportunity to understand, limit and hopefully stop defeat. The importance of being prepared to depose this expert witness cannot be overemphasized.
As the attorney who is preparing to depose an expert witness, you must be certain of your objectives for taking the deposition. Your basic purpose for deposing the expert should be twofold: 1) to determine the expert’s opinions and conclusions, and 2) to undermine or limit the impact of the expert’s opinions and conclusions. Beyond your basic purpose, the goals of your oral deposition of the expert should include the following:
· To determine whether the expert is qualified to render an opinion;
· To determine whether the expert has knowledge and understanding of the case related factual evidence;
· To determine whether the expert has made any alternative assumptions about the factual evidence which is necessary to support his opinions;
· To determine whether the expert admits any facts, assumptions or theories of your case;
· To determine whether the expert has a reasonable basis for his opinions;
· To determine whether the expert has relied upon accepted scientific methods and techniques for his opinions;
· To determine whether the expert has reasonably relied upon any hearsay evidence to support his opinions;
· To determine whether the expert has either authored or acknowledged any authoritative texts or documents on the subject of his opinions or conclusions;
· To lock in the expert’s testimony and assure that the expert does not later offer any undisclosed opinions;
Do not take an opposing expert’s deposition until you have a firm outline and strategy for accomplishing your goals with the expert witness; otherwise, you are not likely to have any success either undermining or limiting the impact of the expert. Lastly, your plan for the expert’s deposition may include hypothetical questions, containing facts and assumptions which you can prove at trial, that will undermine the expert’s opinions and ultimately win your case. The point is that you must have an outline and a strategy for your deposition of an expert. If you have deposed an opposing expert based on a thoroughly prepared outline and strategy, then you should leave the deposition knowing how you will deal with the expert at the time of trial.
II. Eliciting Deposition Testimony: Real-World Application of Techniques
For lawyers learning how to take depositions, there are a few guiding principles to keep in mind and a number of traps to avoid. You must be clear about the purpose of your deposition. First, consider whether the case is likely to proceed to trial. If not, then you can use every piece of ammunition you have and can completely attack the witness and cross-examine on every weak point because that will give you value for settlement. If there is a good likelihood the case may be tried, you may want to hold some of your strongest attacks. For example, you may want to wait to use some documents at trial to surprise a witness and not allow him or her time to think of an explanation for a document. Instead, it might be better to use a pure discovery deposition to pin down what a witness’s story will be without revealing your best documents.
Second, within that framework, determine what you hope to accomplish through the deposition. Beyond discovering what happened, be clear on what two or three points you want to establish through a witness’s testimony. If the case goes to trial, usually only a very small part of the deposition is ever used. The true value of depositions may be for impeachment purposes.
Although the exact approach is a matter of style, it is usually better to use a general outline for a deposition than a detailed list of every expected question. With an overly detailed outline, you are more likely to stick to it in the deposition than to listen to the answers and be able to follow up with some flexibility. If you are using documents, consider marking up the documents or drafting your questions on the documents, this can allow you to do follow-up questioning for each document as you go through the deposition. Be sure to review your outline before the end of a deposition to confirm that you did not miss points that you wanted to address.
Your questioning style may be open-ended like a direct examination, narrow and controlling like a cross-examination, or a combination of the two. How you ask questions at a deposition depends upon your purpose in that deposition. For example, if you know that a witness will not be available at trial and the deposition is being videotaped, you may want to treat the deposition as a cross-examination. You would cross-examine the witness in this type of deposition as you would at trial. If the witness will be available at trial, your purpose more likely will be to elicit the witness’s story. In this situation, you will want to understand what the witness will say and establish points that you want to focus on in the deposition by using wide-ranging and more open-ended questions.
There are other considerations that will guide your questioning style. For example, if a witness may not be at trial, you do not want to have that witness give responses adverse to your client; you should then be wary of open-ended questions (e.g., “what happened next?”). Considering all of these goals will frame whether your questioning style will be primarily like a direct examination, a cross-examination, or a combination of the two.
Elicit all the expert’s opinions and bases of opinions. Even if you do nothing else while deposing an expert witness, at least make sure you confirm that the expert has told you all his or her opinions about the case. If he or she then tries to testify to additional opinions at trial and you had expressly confirmed at the deposition that there were no other such opinions, the additional opinions later offered might be subject to exclusion. If you did not ask that catchall question at the deposition and cover all of the opinions the expert has, and the expert then renders at trial opinions you were not aware of, your case could be endangered.
Beyond that, with respect to each opinion the expert has, make sure you ask the expert to exhaustively identify all the bases for each. You must elicit that information so, among other things, your own expert will be able to identify points of criticism or disagreement. You also want to avoid being surprised. Ensure that you have covered all bases for each opinion by asking catchall questions such as “Are there any other bases for this opinion that you have not already mentioned?” Make sure you keep asking that question until the answer is a definitive “no.” Then, move on.
Put the expert into a box. Sometimes experts are advocates for the parties that have retained them. These experts often are minimally credible, because they are unwilling to concede any point, even when the point is beyond dispute. These experts may be susceptible to being put “into a box” for purposes of cross-examination.
Test areas as to which the expert might support your case. Often, an expert – such as a treating doctor – who is not an outright advocate for the other side will concede points when appropriate. You should use these concessions to the extent possible to support your case. When an opposing expert is willing to render opinions favorable to your case, do not be afraid to make use of that testimony. Obviously, helpful opinions given by an opposing expert will be more valuable than if those opinions are coming from your own expert.
Ask an expert who and what is considered authoritative in the field. Find out which treatises or authors the expert considers to be authoritative in the field. You may be able to find information in the treatise or from one of the authors that contradicts the expert’s opinions. You may learn the expert considers your expert’s work to be authoritative, or that the expert considers a treatise in which your expert is published to be authoritative. This allows you to bolster your expert’s credibility through the opposing expert.
Do not let an expert push you around. Retained experts are notoriously difficult to control, particularly for a new lawyer. You must establish control early by making the expert answer your question. If the expert continues to offer an evasive non-answer, you must redirect the expert to your question and make him or her answer it. You may need to object and then move to strike portions of the expert’s answer. If the expert refuses to answer a question, establish that on the record to set up a potential motion to strike the expert as a witness.
Be persistent. In addition to not letting an expert push you around, you must be persistent in following through with your line of questions. Do not let the expert move from a topic if you think it has not been sufficiently addressed. You are paying a significant amount for the deposition, so get your money’s worth. Ignore the expert’s (possibly feigned) exasperation, and ask your questions.
III. Cross Examination Rules, Strategies and Traps to Avoid
1. Be Brief
The objective of cross examination of an expert is not to attempt to refute every point the expert has made on direct examination. The objective is to cast significant doubt on the credibility of the expert. This can only be accomplished by addressing the credentials, assumptions and opinions that the expert has testified to that you know you can demonstrate are not worthy of the jury’s belief. When preparing for cross, every question should be analyzed to see which of those three things are challenged. If there is any significant doubt of who will win the point, leave the question on the cutting room floor. The cross of a tough expert should seldom take more than one quarter of the time that was taken on direct. If you find that the cross is going to take longer than that, you should seriously consider cutting it back. Going on too long is one of the two most frequent causes of an unsuccessful cross examination.
2. Use Plain Words
If the only people in the courtroom who realize how effectively you have “gutted” the opposition’s expert are you and the expert, then the expert has won and you have lost. Your ability to smoothly demonstrate that you have a true mastery of the subject that you are discussing with the expert, while satisfying to you, is of no benefit to the judge. You must reduce the issue you are addressing to a knowledge level that will convince the judge that what the expert has sold them on direct is inconsistent with the common sense that you will be emphasizing they need to use to decide the case in closing argument.
3. Use Only Leading Questions
Everyone knows this rule, but everyone also fails to follow it diligently. If you doubt that, go back and look over the last cross examinations you have handled. While looking for the places where you failed to keep the ball in play with only leading questions, look for where the cross fell apart. It will almost always be where you allowed the expert to take control of the traffic and begin to explain what she had already carefully explained on direct examination. Good experts have probably spent several times as many hours on cross in a courtroom as you have. They are always waiting for you to give them an opportunity to reiterate their favorite themes.
4. Be Prepared
The risk of extensive preparation is the tendency to show the judge all that you know. That can lead to a lengthy, tedious cross that does not capture the judges’ attention. Preparation includes distilling the key points and determining how to convey them. When you have prepared for hours or days to destroy an opposing expert, you become captivated by how powerful your carefully crafted outline is. And not using every single question seems to leave some of your great ideas at home. Save that effort for when you have your own expert on the stand and she is willing to cooperate in your educational endeavor.
Failing to listen to the answers you are getting is the next most common pitfall. If the expert’s answers appear to defeat the credibility challenge posed by your questions, then you have lost and the expert has won. Often what the expert says in response to a great question will provide the most powerful next question in your cross. The expert may provide an even more perfect setup for your next question than your question did.
6. Do Not Argue
It is very important for you to generally remain the noble person who is confronting the expert. If someone is going to argue, it should be the expert. Your conduct should always remain respectful. There is nothing gained by appearing to become angry and frustrated by the expert’s unwillingness to concede points that she should obviously concede. That means your side must come across as reasonable and polite. If you find yourself getting upset or emotional, it probably means that you know you are losing the debate, and it may mean it is time to think about stopping.
7. Avoid Repetition
Avoiding repetition prevents the expert from fixing an answer that he has previously given and would like an opportunity to correct. Asking a question more than once is frequently the mistake that destroys much of the impact of the expert’s first great answer, before he had the opportunity to consider how to better position that answer. Judges hate repetition anyway because they are tired enough of the trial and don’t want to watch the same hand played again. The “Be Brief” rule is hard to comply with if the same subject is covered several times.
8. Disallow Witness Explanation
If you are careful about using leading questions, you will substantially limit the likelihood of the expert being able to successfully say that he “needs to explain.” Test each question in your outline by asking, can you successfully cut the expert off to a “yes or no”? If not, consider whether that question should be dropped or recast. Usually, it will take several narrative answers before you can expect the judge to step in and instruct the expert to respond, but asking for the judge’s help (if you get it) sends a powerful message that the expert is trying to be evasive.
9. Limit Questioning
Many trial judges create their own rules of courtroom behavior. Some of these can be onerous, imposing time limits on examination and otherwise restricting the courtroom latitude of trial attorneys who have become accustomed to a more generous approach. Some rules may affect what you are allowed to do on cross examination. In some jurisdictions, cross is strictly limited to the scope of direct. In others, cross is “open” and can be directed to any subject that is relevant even if not addressed on direct. In most jurisdictions, re-direct is limited to matters that were covered on cross. If you are careful about not opening up subjects that you know are likely troublesome, you may be able to prevent questions on those subjects during re-direct.
10. Save the Ultimate Point for Summation
The ending is what everyone always takes away. If the last area of questioning “finishes off” the expert’s credibility, you have one. If the ending is flat, or the expert scores some big points, it is likely that the judge will conclude that the expert won the battle.
IV. Hostile Witness Tactics
a. What to do when a Witness is Being Evasive of Defiant
Cross examining a witness who refuses to be led can be a difficult task. When examining this type of witness, it is particularly important to ask short, concise questions that are statements of fact. Anything else will surely land you in hot water-this witness will take advantage of any opportunity to derail your case with his version of what is important for the jury to know. Or perhaps this witness will just be combative-either way, there are ways to control such witnesses effectively. First, do not argue with the witness. The minute you are arguing with the witness, you are not going to win. When a witness tries to interject his own answer to one of your questions, or otherwise refuses to answer, smile, and then offer to rephrase the question. Be persistent, but polite.
Either by nature or by circumstance, some witnesses will not remember important details, or claim not to remember important details. The forgetful witness may be one of the most frequently encountered types of difficult witnesses, and it is important that you learn how to deal with the all-to- frequent testimony of “I don’t remember,” or “I can’t recall,” or “That was a long time ago, and I can’t say for sure.” First, if you are cross examining the witness who doesn’t remember, be especially careful to limit your questions as much as possible to elicit only yes or no responses-any place where the witness can add in unnecessary verbiage will likely not be good for your case. Remember the cardinal rule of cross examining and ask only short and simple factual statements. It will be easy to get angry and frustrated with an evasive, non-responsive witness. It is important to stay calm, because only then can you stay in control. Also, when it comes to the judge’s perception, you want to continue to make sure you are the one who looks credible and forthcoming. If the witness cannot remember key details, you will sometimes have deposition testimony or other extrinsic evidence to rely on, which will be helpful in refreshing the witness’s memory.
b. Translating Expert Testimony and Legalese into Plain English
Judges will retain information better when they interact with that information. One of the best ways to get judges to interact with the expert’s testimony is to make his or her methodology both easy to understand and easy to use. By walking the judge through a point-by-point re-enactment of the expert’s methodology, it allows the judge to see what the expert is seeing as they are analyzing the subject matter. In essence, you are making the judge the expert. This transference is important because you need them not only to understand your expert but to actually stand in or become the expert in deliberations. As you are walking the expert through the steps of their methodology, it is also important to ask them about what they were thinking as they looked at the data or results that they were seeing. For example, by allowing them to describe their impressions and reactions as they started going through their damages calculations or as they read the opposing expert’s report, it allows the judge to understand how the expert formed their final conclusions.
The second point in conveying a recognizable methodology to judges is creating familiar examples and analogies for the judge. Whether invoking the often used “recipe” analogy for a patent, talking about lottery odds, or speaking about home or car loans, judges use analogies to understand the methods and reasoning used by experts because these anecdotes touch on an experience the judges themselves have had. The greater the familiarity, the greater the acceptance.
c. Effective Use of Evidence/Documents in Examination
The easiest way to control a witness is through the use of exhibits. Accordingly, use your documents to weave your testimony on cross-examination. What is the witness to do? Deny that he wrote the document? Deny that the document she wrote is a true statement? It almost doesn’t matter what the witness’s response is. What does matter is getting the witness’s own words in writing into evidence before the judge. For example:
Q: You wrote this letter, didn’t you?
Q: And when you wrote that “I cannot justify paying so much for senior staff when we are missing our budget,” you believed that to be a true statement, didn’t you?
The advent and indeed overuse of e-mails has made cross-examination through the use of documents even simpler, and the use of depositions almost superfluous. Witnesses do not talk to each other anymore. They merely e-mail each other. Hundreds of e-mails. Thousands of e-mails. We are drowning in a flood of e-mails, and they are all part of e-discovery. People spontaneously write e-mails without hesitation and, more importantly, without reflection or thinking.
It is effective to have the witness repeat what he or she wrote and then merely ask if the witness believes it to be a true statement at the time he or she wrote it. Note the way to phrase the question-a true statement at the time it was written. Either the witness has to confess being a liar in writing an intentionally false e-mail or the witness has to acknowledge that he believed the e-mail to be true at the time written, regardless of the fact that a different truth dawned on the e-mail author later in the litigation or in the life of the dispute. Here is a typical exchange of effective use of e-mails in cross-examination:
Q: Is this an e-mail that you sent on September 2, 2007?
Q: When you wrote in that e-mail you were concerned about meeting the production deadline under the contract, that was a true statement when you wrote it, was it not?
Q: You knew there had been a delay in the manufacturing process, didn’t you?
Q: And that-to use your words-“concerned you,” isn’t that true?
Q: In fact, you anticipated that the contract production requirements were not met, isn’t that true?
Q: And that was the “concern” you wrote about in your e-mail, was it not, sir?
Here, it almost does not matter what the witness says. If the witness says, “No, I do not believe my statement was true when I wrote it,” then he is admitting he is a liar. His remaining testimony is not credible because common sense tells you the document represented what was true at the time it was written. More likely, confronted with the e-mail’s memorializing of the witness’s contemporaneous statement, the witness is bludgeoned into an admission of yes.
When you plot out cross examination, go carefully through the documents, especially the e-mails. Lay them out like a long mosaic and weave them back together as you tell your story through cross-examination.
V. Handling Objections to Questioning
Direct examination is your chance to paint the picture of your case to the judge, and when concerning an expert, the best chance to present your witness’ testimony. Having a plan of attack is key, especially with respect to the more highly technical aspects of your expert’s testimony.
Talk with your witness, if truthful and appropriate, about avoiding “absolutes.” This means making statements like “in all cases” or “every time.” This way, the witness does not close to the door to a certain line of questioning and open himself up to impeachment later. It should be expected that opposing counsel will try to “pigeonhole” the witness’ testimony this way, so be sure to go over this with your expert.
Talk with the expert, if truthful and appropriate, about not framing answers in a way to appears partial to one side or the other. This is significant, since bias is a valid grounds for disqualifying an expert witness. Remind your expert of the role that he plays during direct examination and the litigation generally. Ask open-ended questions that will allow the expert to elaborate on the most important points of testimony.
Take the lead on how to engage the judge. Discuss tips with your expert, if appropriate, on how to rephrase some technical explanations and make them easier to understand. For example, expert witnesses in the medical field have a tendency of using technical terms such as “radial,” “distal” and “proximal,” which may be difficult to understand. Brainstorm with your expert better ways to present this information that will keep the judge interested in your expert’s testimony. The most knowledgeable expert in the world will do little to help your case if the judge is asleep.
Ask anticipated cross-examination questions. This strategy of “beating them to the punch”, so to speak, will not only catch opposing counsel by surprise and weaken their strategy on cross, but will also demonstrate that you and your expert have explored any potential problems in the testimony and have addressed them to the court vis-à-vis a proper counter argument or explanation.
No matter how many times an expert has testified at trial, being grilled during cross-examination is always incredibly stressful. This is one of the only chances opposing counsel will have to directly poke holes in your case by attacking the credibility of your expert’s testimony. The best way to prepare your expert for facing difficult questions on cross is to practice them with your experts, if appropriate. However, in some instances, there can be a concern that opposing counsel may inquire as to what you talked to the expert about prior to trial. Thus, it’s always advisable to simply tell experts to tell the truth.
For all yes or no questions, framing is key for both the expert and the cross-examiner. The attorney’s objective on cross is to weaken the expert’s testimony and thus will undoubtedly frame “yes” or “no” questions in such a way to achieve that purpose. If a question is difficult to answer by simply stating “yes” or “no,” let your witness know it is perfectly fine to tell the questioning attorney that such a simple answer cannot be provided in that context. This way, it makes clear that your witness is not evading a difficult question, but is rather answering in the most accurate way possible. Another strategy to handle this type of question is to say “in some circumstances” if that is the case. This way, you are not misleading the court by answering yes or no if the answer truly is “sometimes.” This paints a better picture for your expert as a credible witness and also weakens opposing counsel’s line of questioning.
Sometimes, based on a desire to please the attorney and the court, experts may get ushered into answering a line of questioning outside the scope of their expertise. Remind your witness that “I don’t know” is a perfectly acceptable answer, as long as that is the truth. This is extremely important, since your witness can only make statements that fall within the scope of your witness’ expertise and any statements made otherwise will be stricken from the record. Be sure to discuss with your expert instances where “I don’t know” is NOT an acceptable answer, such as when the question directly relates to a basis or methodology of your expert’s opinion.
In many instances, opposing counsel may cut off your expert in the middle of an answer, especially if the answer isn’t favorable to their story of the case. Discuss different strategies of how to approach this problem with your expert witness, so important parts of testimony are not left out. For example, instruct your witness that if there is some important portion of testimony that needs to be included, then the witness should take the liberty of saying what needs to be said. If the attorney insists on cutting off your witness, instruct your witness to answer the next question by stating the previous question was not completely or accurately answered. Remind your witness to leave the door open for clarification on re-direct. This means that when opposing counsel asks your witness “is that everything,” it is crucial that your witness provides a flexible answer, such as “that is all I can recall at the moment.” Failure to do so may be grounds for impeaching your witness, or at the very least looks somewhat conflicting to the jury.
Expert witnesses may respond poorly to perceived hostility on cross-examination. Remind your expert not to get defensive if they feel attacked by a line of questioning. If it’s objectionable, you as the attorney will take care of it. Remind your witness that the objective of a cross-examination is not to pick a fight with the attorney, but an opportunity for the witness to “stick to their guns” and present an even stronger case to the jury for your client. Maintaining a resolve and not being overcome by emotions or getting flustered under pressure is the most important part of an expert’s mindset when on the stand. The most important tip to remind your witness is to stop, breathe and think about the question being asked before providing an answer. This way, your witness does not call out uncertain answers based on a pressure to perform. The priority is and always should be not to compromise the credibility or image of your witness to the judge.
Dan Goldman and Mor Wetzler, How to Take a Deposition, ABA Young Advocates Section of Litigation, (April 4, 2011), http://apps.americanbar.org/litigation/committees/youngadvocate/articles/spring2011-take-deposition.html/.
Kara M. Burgos, Andrew B Hebl, & Eric J. Ryberg, 101: Deposition Techniques: Get Your Ducks in a Row, Wisconsin Lawyer, (September 1, 2013), http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?Volume=86&Issue=7&ArticleID=11015/.
Warren E. Platt, Cross Examination of Experts: How to Avoid Hurting You Case, Product Liability Update, (August 26, 2013), http://www.swlaw.com/blog/product-liability-update/2013/08/26/cross-examination-of-experts-how-to-avoid-hurting-your-case/.
Trisha M. Rich, Effectively Examining the Difficult Witness, Trying Your First Case: A Practitioner’s Guide, (April 2014), http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2014_sac/2014_sac/trying_your_first_case.authcheckdam.pdf/.
Richard Gabriel, Redefining Credibility: Turning Expert Witnesses into Teachers, The Jury Expert, (May 1, 2009), http://www.thejuryexpert.com/2009/05/redefining-credibility-turning-expert-witnesses-into-teachers/.
Mark A. Neubauer, Mastering the Blind Cross-Examination, ABA Litigation, Volume 35, Number 2, (Winter 2009), https://apps.americanbar.org/litigation/litigationnews/trial_skills/tips-blind-cross-examination.html/.