By John Gomez
Tip #1: Get all the Opinions
One good thing about deposing an expert is that you can do it, in theory, with virtually no preparation. All you need to ask is, “What are your opinions? What are the bases of your opinions?” Just keep repeating those questions and you are taking a basic, starter expert deposition. Repeat like a robot until the expert has expressed all of her opinions and their bases.
Tip #2: Close ‘Em Out
At the end of the deposition, make sure you close out the expert by asking something like: “Have you now provided me all of your opinions and the bases for them that you intend to express at the time of trial?” The reason to do so is that once they say “yes,” they cannot provide new opinions at the time of trial. Kennemur v. State of California (1982) 133 Cal. App. 3d 911.
Tip #3: Be Like David
Goliath was big and strong. But he couldn’t see well. David was young and small. But he was good with a sling. Goliath wanted to fight David hand-to-hand. David attacked instead from distance. He didn’t want to fight Goliath where he was strongest. In our cases, often the expert knows more than us about the subject matter. Most times, you won’t beat the expert in her chosen field. So, you may have to fight elsewhere at the time of trial. Is the expert biased? Did the attorneys only provide her certain facts or documents? Has another court ruled her testimony is unreliable or does she have something in her background that affects her credibility? Whatever it is, figure out where you want to fight at trial and develop the foundational testimony during the deposition.
Tip #4: Be Simple and Relevant
Whatever the field is, and whatever the technical language may be, distill it to simple concepts and language. Aside from getting all the opinions, you want to use plain language to clarify exactly how the expert’s opinions apply to your case. And you have to do so in language that makes sense to a jury (think sixth grade level). Here’s an example. Today I deposed a “warnings” expert in a rat bite fever case. He wanted to talk about standards and literature. But I asked him something like, “Don’t you think a parent would want to know that buying a pet rat could end up with their kid dying?” Don’t be scared to use plain language and apply it to your case.
Tip #5: Be Civil
Lots of lawyers get worked up and mad when they depose the other side’s expert. Their questioning may be aggressive and hostile. I don’t think that works. The deposition is a time to get information, not beat somebody up. Being courteous and civil is much more likely to lead to an expert being forthcoming and complete. Besides, we practice law in San Diego. That means we do so with civility, integrity and professionalism — even when we think the other side’s expert may be dishonest or is killing our case.
John Gomez is founder and president of Gomez Trial Attorneys.