In the Los Angeles Lawyer, April 2013 edition, page 13, Scott A. Marks wrote about practice tips for a lawyer to take an expert’s deposition.
Winning at trial depends on an attorney’s ability to take a deposition of the opposing party’s expert. In a deposition, an attorney needs to get the expert to express all the opinions, and each fact that supports the opinions the expert intends to testify to at trial.
For impeachment, a foundational fact underlying an expert’s opinion is not treated the same as the opinion. The law does not give the expert’s opinion the same integrity as it does the information underlying the opinion. The expert’s opinion is no better than the facts used to support the opinion.
During the deposition, it is the attorney's goal to develop the facts for the jury that show the expert’s bias for the retaining party. The attorney wants to persuade the jury to disregard the expert’s testimony.
To get to a winning deposition, the lawyer begins with properly noticing the expert’s deposition and demanding the production of the expert’s file. An expert may need to provide a numerical estimate for the past three years regarding the number of times s/he has been retained by a plaintiff or defendant and the income generated from such expert witness activity. In California, Evidence Code Section 722(b) provides, “The compensation and expenses paid or to be paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his testimony.”
During the deposition, the lawyer should ask when the expert was first contacted on a case, who made the contact, what was discussed, and the scope of the assignment.
The attorney should obtain the curriculum vitae, and analyze each portion of the expert’s file which may include depositions, correspondence, time sheets and billing records, and work-up notes. The attorney should look at whether the expert was provided with all the key and relevant information by the adverse party. If key information is not in the file, the attorney should not emphasize the absence during the deposition. The attorney does not want to alert the expert and opposing counsel so the attorney can mention the omission during cross-examination at trial.
When an attorney reviews copies of deposition testimony given by the expert in other cases, the attorney should try to impeach the expert by seeing if the expert gives a different answer to the same question in a different deposition. This evidence is discoverable.
The lawyer should check for deficiencies in the expert’s background that would make the expert incompetent to render an expert opinion. In California, Evidence Code Section 801, an expert is allowed to render an opinion only “based on matter (including...special knowledge, skill, experience, training and education)...that reasonably may be relied upon by an expert witness....” If a deficiency exists, in California, the attorney can exclude the expert from testifying at trial by an in limine motion or an Evidence Code Section 402 hearing.
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