There have been volumes written about cross examining expert witnesses. It’s been done to death. If you’re new to the subject, and a plaintiff’s lawyer, I’d suggest you start with Exposing Deceptive Defense Doctors by Dorothy Clay Sims.
But what about discovery?
The rookie mistake to make when deposing an opponent’s expert is to essentially show him your entire case, make all of the arguments you want to make, and then hope the expert concedes he/she was wrong the whole time. This never* works. (*ok… so in maybe 1 in 100 or 200 cases it can work, but only if you have the expert completely dead to rights, have established that the expert’s conclusion relies solely on one demonstrably false assumption, have established that his opinion would change if that assumption was false, and can prove that the assumption is false. Even then you might get some weasling). I’ve read a ton of transcripts that go like this:
Q: So doctor, you agree that Mr. Plaintiff had pain after the crash, true?
A: At some point, yes.
Q: And you didn’t see any complaints of pain in the 10 years of prior medical records you reviewed, true?
A: True.
Q: So isn’t it logical that Mr. Plaintiff’s pain came from this crash.
A: Nope. It’s degenerative.
If this is your line of questioning in a discovery deposition, you’re doing it wrong. I mean, geez… what did you think the expert was going to say? Yes? Come on. This line of questioning is OK at trial, but you aren’t going to get any good admissions this way.
I believe the first step in deposing a defense expert is:
1. Prepare yourself.
Read and understand the expert’s report and whatever the report is based on (ie your client’s medical records, an accident reconstructionist’s testimony, physics, whatever). Make sure you understand what the hell the expert is talking about. This includes things like googling words you don’t know, learning formulas like Delta V, etc.
Read any articles the expert relies on. Read any articles cited by those articles or that cite those, especially ones that are critical. Review the expert’s CV and read anything the expert has written that might touch on the subject of his/her testimony.
2. More preparation – old testimony
Obtain any prior testimony of this expert you can. Past reports, past depositions, trial testimony, whatever. Good places to start are local trial listservs and trialsmith.com (plaintiff’s lawyers only). Search westlaw, state court decisions and state workers compensation decisions for cases in which the expert has testified. Contact the lawyers involved and see if they have any depositions or other transcripts (or even expert witness disclosures signed by the expert).
For the frequent fliers, you may have almost all of the information you need right here. Chances are, somewhere along the line you’ve found important concessions to your case. Organize those in your trial outline by deposition, page and line so that if the expert denies the fact or opinion you’re trying to elicit, you can impeach him/her with the prior testimony.
3. Find out where the battle lines are drawn.
This is crucial to any expert’s deposition. You need to know what they’re going to say at trial. All of it. This may include asking them questions about subjects that aren’t specifically addressed in the expert disclosure (ie was Mr. Plaintiff compliant with treatment; I assume you don’t have an opinion about the minimum delta v required to cause a crash). This depends on whether you think the judge will allow testimony that wasn’t specifically disclosed beforehand. Some judges (and some states) are very strict, some are very lenient. In doubt, I like to know what the expert’s opinions are – all of them – even if they hurt me as opposed to having a new opinion I was unprepared for sprung on me for the first time at trial.
The next step depends on your purpose:
4A. Stop.
If you know where the battle lines are drawn, you have the admissions you want in prior testimony, and you know the case isn’t going to settle, just stop. Save the good stuff for trial and possibly leave your opponent unprepared.
4B. Hit ’em hard.
If you’re pretty sure the case is going to settle, hit them with all you have right now. Show the other attorney how weak their expert is and how poorly they hold up. Show them that you know he failed his boards, he’s lying about his CV, how he previously testified to the opposite of what he’s saying now, how his last journal article strongly contradicted him, etc. Show no mercy and make them run back to their client for settlement authority.
Of course, if you choose 4B, be sure the case is going to settle. If you do this, you’ve now given the other side and their expert time to think things over and weasel out of some of this. Besides, if your case is really terrific and the other expert is that bad, try the case! Remember, settle your dogs, try your winners.
(Howard Zimmerle is a trial lawyer with Warner & Zimmerle in the Quad Cities. He has offices in Rock Island and Davenport, and handles cases in Iowa and Illinois. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660).
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