CBA Record May-June 2023

YOUNG LAWYERS SECTION: BUILDING BRIDGES

are important admissions that bear on the weight of the expert’s opinions. If the expert is a practicing professional of some sort, ask the expert how they approach the particular issue in their practice so that they essentially give you a checklist of their real-life process. Then, go through the expert’s checklist and confirm whether they did all those things in your case. For example, if the expert is a cardiologist, ask the cardiologist what they usually do in assessing a patient’s condition. If the cardiologist says that they usually exam ine the patient and you know that they did not do so here, then get an admission that the cardiologist did not examine your client before rendering their opinions. Admissions like that establish that the expert’s process was deficient, which nega tively impacts the expert’s credibility and the weight the factfinder may give them at trial. Treating the deposition as process oriented may yield more fruitful results rather than fighting with the expert about the science or other principles at play. You usually have limited time to depose a witness under the applicable rules of procedure. Understandably, it is incred ibly frustrating when the witness is not answering your questions openly and completely. Considering the reasons why the witness may be reluctant to answer questions may help you evaluate and modify your approach to make the most out of the deposition. How to Make the Most of a Deposition

approach altogether. Expert witnesses have knowledge, education, skill, train ing, or experience in specialized fields that allow them to form opinions that aid the trier of fact in understanding the evidence or determining a fact at issue. The first step of an expert deposition is to learn as much as feasible about the spe cialized field so you can understand the issues in the case and the expert’s opin ions, biases, assumptions, and testimony. The best approach at the deposition is not to argue with the expert about the spe cialized governing principles or to attack their opinions as scientifically incorrect. Remember that the expert has far more experience in their field than you do, and attempting to rebut the substance of their opinions often provides an opportunity for the expert to expound on or buttress their opinions. Instead, with experts, focus the deposi tion on their process. After you confirm the expert’s background and credentials, confirm their disclosure or report con tains all their opinions and the basis for those opinions. This way, you identify the universe of the expert’s opinions, and you prevent the expert from testifying to any undisclosed opinions at the deposition or at trial. Then, explore the process by which the expert arrived at their opinions. Ask the expert what they considered in rendering their opinions. If the expert failed to con sider important facts or documents, those

ally different from their prior deposition testimony, then you can impeach the witness to neutralize their credibility to a factfinder. Break Down Long Answers Experienced deponents who are chatty and give long, narrative answers are long winded because they are reluctant to give useful admissions at trial. Thus, to make the witness’s testimony useful, you must break down the answers into short snip pets that contain important admissions or that can be used for impeachment purposes at trial. The key to success with these types of witnesses is to listen care fully to the answer and have a “good ear.” If necessary, write down the key points of the witness’s answer on a note pad so that you remember what you need to break down in short, useful soundbites. Then, repeat the witness’s key testimony back to them in short, closed-ended questions: “You just testified that you don’t remem ber the exact date of the accident. But do you remember that the accident occurred on Wednesday? And that it was raining outside?” Over the course of the deposi tion, this approach has the added benefit of politely pushing the witness to cut to the chase, especially as the chatty witness and their counsel get more tired as the deposition proceeds. With Experts, Focus on Their Process Expert witnesses require a different

Whitney Barr is an associate attorney at David A. Axelrod & Associates. Jake Berger is a partner at Tabet DiVito & Rothstein LLC, practicing primarily in commercial litigation in various state and federal courts, and is Co-Editor of the YLS Journal in the CBA Record.

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