Opposing counsel generally can have one or more overall objectives for deposing an expert witness. Counsel may want to set up the expert for a Daubert challenge or use his answers for another pre-trial motion. Opposing counsel can be expected to prepare very diligently for an expert’s deposition. To excel, your expert must prepare as hard or harder.
Opposing counsel’s questioning techniques and demeanor are likely to be far different than what an expert would face at trial. Explain to your expert that at deposition he is likely to face a seemingly friendly attorney who asks open-ended questions with the goal of getting the expert to talk as much as possible. Some lawyers take a different approach and act intimidating to unnerve a witness, leading to potentially damaging admissions. As counsel, do your research by asking around about the particular strategy/likely demeanor of a specific deposing counsel.
Also, you may not know if the attorney taking the deposition is the associate or partner on the case. Find out ahead of time. Associates tend to be more friendly and thorough, whereas trial counsel are likely to be more practical and to the point. The goals of opposing counsel when deposing your expert witness for discovery purposes will include some, if not all, of the following, which should be reviewed with your expert:
• Learning the opinions of your expert.
o The deposing attorney wants to eliminate new, different, or additional opinions offered by the expert at trial.
• Learning the expert’s qualifications.
o Juries will consider the expert’s education, experience, and other qualifications when weighing the expert’s opinion in the case.
• Locking down the expert.
o Opposing counsel can impeach your expert at trial with his prior inconsistent testimony if the expert attempts to change his answer to questions posed at deposition.
• Sizing up your expert’s likely effectiveness as a witness. This includes factors such as the witness’s likeability and demeanor.
• Determining if your expert is biased.
o Experts should be advised to refuse to get involved in cases where they are biased or where they can be reasonably perceived to be biased.
• Discover factual assumptions used by your expert.
o An expert’s credibility can be damaged if his assumptions are incorrect.
o Your expert should be prepared to answer the question of how his opinion would change if certain assumptions turned out to be incorrect.
• Gather as much information as possible.
o Counsel may also size up the witness’s ability to explain complicated technical principles.
o Your expert should be taught to answer questions truthfully and completely but to not volunteer damaging information.
• Use your expert to help opposing counsel’s case.
o Opposing counsel may attempt to get the expert to make concessions or appear inflexible.
o Your expert should be prepared to make concessions readily and gracefully.
o Learn about the opponent’s case to evaluate the settlement value of the case.
• Intimidate your expert.
o Intimidation could include threatening to report the expert witness for professional discipline.
o Your expert should be prepared for this and should appear unflappable.
• Learn what your expert did.
o Your expert needs to be prepared to explain what he did and why as well as what he did not do and why he did not do it.
• Set the stage for a later motion to disqualify your expert or throw out the expert’s opinion.
o Your expert needs to be prepared to recognize questions furthering this goal. This includes understanding what opposing counsel is trying to do and being ready with specific, credible facts to justify the expert’s qualifications and conclusions.