Practice Tip: Playing Poker with Experts

Part One of this article described problems arising out of the substitution of experts, and discussed some recent case law. The conclusion herein presents some suggested ways of dealing with the situation.

Suggested Approach

Every expert deposition needs to be thorough and explore the factual and theoretical bases of the expert's opinions. This approach is necessary to identify the types of experts to respond to the plaintiff's expert, to prepare Daubert and/or Kumho motions seeking to preclude the expert, to cross-examine the expert at trial, and to identify topics that are to be addressed in the testimony of your fact and expert witnesses at trial. This article does not advocate taking a superficial or sloppy expert deposition.

'Playing All Your Cards'

Nevertheless, the willingness of some courts to allow the untimely substitution of expert witnesses, particularly where the only justification for that substitution is that the deposition revealed his lack of qualifications and veracity, suggests that little is gained by “playing all of your cards” at the deposition of the opposing expert. Your client may be better served by your holding back some lines of
examination until trial, and not unnecessarily putting opposing counsel on notice that he or she needs a new expert ' allowing opposing counsel to spend months trying to figure out how to deflect the lines of questioning that so flustered the expert during the deposition.

By conducting a thorough investigation of the expert before the deposition, you may be able to identify prior articles, reports and deposition, and trial testimony that will allow you to cross-examine the expert at trial on a number of critical issues that do not need to be raised at the deposition. If, for example, that investigation reveals that the expert has testified for plaintiff's lawyers in your case on 50 prior occasions, has testified that 40 different products are defective, or has written articles inconsistent with his key opinions in this case, generally very little is gained by bringing those facts out at the deposition. Similarly, if you learn through investigation that the expert obtained his Ph.D. at a correspondence school or flunked several courses in college in the area of his supposed expertise, bringing those facts out at deposition does not necessarily advance your case significantly.

Bias and Veracity

Questions on these issues primarily relate to bias and veracity, and will have their greatest impact if asked at trial without prior notice. Plaintiff's counsel may be unaware of these deficiencies, and either may not anticipate these questions in his direct trial examination in an effort to deflect the impact of these questions, or may not prepare the expert on how to respond to cross examination. At best, asking these types of questions at deposition might prompt settlement discussions, but if the case does not resolve, asking these questions at deposition allows plaintiff's counsel and the expert to develop strategies to respond to these questions at trial. Those questions also may suggest to opposing counsel that he needs a new expert.

Similarly, if the expert has made some obvious mathematical errors, you may be able to avoid the topic altogether at the deposition, or just ask enough questions to set up your cross-examination without revealing the precise line of questions to be asked at trial. These errors need to be of the type that can be explained fairly quickly to the jury. There may, of course, be situations where the mathematical formulas involved are complicated and need to be examined during the deposition so that you understand how those formulas factor into the expert's opinions. By avoiding questioning about obvious mathematical errors, however, you may be able to preserve an effective line of questioning for trial.

Late Substitution

In opposing the late substitution of a new expert, you should anticipate that the court may allow the relief requested; consequently, you should request in the alternative that the court award attorneys' fees and expenses for the cost of preparing to rebut the original expert report and for the deposition of the original expert.

When the opposing side has disclosed a weak expert, counsel also should consider not moving to preclude that expert because that motion may increase the risk that the other side will respond by seeking another expert who is better qualified than the original one. Instead, your client might be better off by having you demonstrate to the jury the expert's weaknesses on cross-examination.

Conclusion

Taking a solid expert deposition can be a daunting proposition under the best of circumstances. In addition to the possibility that you may not have asked enough questions to prepare all of the necessary defenses to the case, you need to consider whether you have asked too many questions that are not critical to an anticipated motion to preclude. Careful consideration needs to be given to asking enough tough questions at an expert's deposition to establish a record that will support a persuasive motion to preclude the expert.
At the same time, you do not want to ask unnecessary questions about information developed through
investigation regarding bias and credibility, which would be more effective on cross-examination, and which would invite opposing counsel to seek to substitute experts.

James H. Rotondo, a member of this newsletter's Board of Editors, is a Partner in Day Pitney LLP's Hartford, CT, office. He represents a broad range of corporate clients in product liability, negligence, insurance coverage, and commercial litigation matters, and also serves as co-chair of the firm's Commercial Litigation Department.

Part One of this article described problems arising out of the substitution of experts, and discussed some recent case law. The conclusion herein presents some suggested ways of dealing with the situation.

Suggested Approach

Every expert deposition needs to be thorough and explore the factual and theoretical bases of the expert's opinions. This approach is necessary to identify the types of experts to respond to the plaintiff's expert, to prepare Daubert and/or Kumho motions seeking to preclude the expert, to cross-examine the expert at trial, and to identify topics that are to be addressed in the testimony of your fact and expert witnesses at trial. This article does not advocate taking a superficial or sloppy expert deposition.

'Playing All Your Cards'

Nevertheless, the willingness of some courts to allow the untimely substitution of expert witnesses, particularly where the only justification for that substitution is that the deposition revealed his lack of qualifications and veracity, suggests that little is gained by “playing all of your cards” at the deposition of the opposing expert. Your client may be better served by your holding back some lines of
examination until trial, and not unnecessarily putting opposing counsel on notice that he or she needs a new expert ' allowing opposing counsel to spend months trying to figure out how to deflect the lines of questioning that so flustered the expert during the deposition.

By conducting a thorough investigation of the expert before the deposition, you may be able to identify prior articles, reports and deposition, and trial testimony that will allow you to cross-examine the expert at trial on a number of critical issues that do not need to be raised at the deposition. If, for example, that investigation reveals that the expert has testified for plaintiff's lawyers in your case on 50 prior occasions, has testified that 40 different products are defective, or has written articles inconsistent with his key opinions in this case, generally very little is gained by bringing those facts out at the deposition. Similarly, if you learn through investigation that the expert obtained his Ph.D. at a correspondence school or flunked several courses in college in the area of his supposed expertise, bringing those facts out at deposition does not necessarily advance your case significantly.

Bias and Veracity

Questions on these issues primarily relate to bias and veracity, and will have their greatest impact if asked at trial without prior notice. Plaintiff's counsel may be unaware of these deficiencies, and either may not anticipate these questions in his direct trial examination in an effort to deflect the impact of these questions, or may not prepare the expert on how to respond to cross examination. At best, asking these types of questions at deposition might prompt settlement discussions, but if the case does not resolve, asking these questions at deposition allows plaintiff's counsel and the expert to develop strategies to respond to these questions at trial. Those questions also may suggest to opposing counsel that he needs a new expert.

Similarly, if the expert has made some obvious mathematical errors, you may be able to avoid the topic altogether at the deposition, or just ask enough questions to set up your cross-examination without revealing the precise line of questions to be asked at trial. These errors need to be of the type that can be explained fairly quickly to the jury. There may, of course, be situations where the mathematical formulas involved are complicated and need to be examined during the deposition so that you understand how those formulas factor into the expert's opinions. By avoiding questioning about obvious mathematical errors, however, you may be able to preserve an effective line of questioning for trial.

Late Substitution

In opposing the late substitution of a new expert, you should anticipate that the court may allow the relief requested; consequently, you should request in the alternative that the court award attorneys' fees and expenses for the cost of preparing to rebut the original expert report and for the deposition of the original expert.

When the opposing side has disclosed a weak expert, counsel also should consider not moving to preclude that expert because that motion may increase the risk that the other side will respond by seeking another expert who is better qualified than the original one. Instead, your client might be better off by having you demonstrate to the jury the expert's weaknesses on cross-examination.

Conclusion

Taking a solid expert deposition can be a daunting proposition under the best of circumstances. In addition to the possibility that you may not have asked enough questions to prepare all of the necessary defenses to the case, you need to consider whether you have asked too many questions that are not critical to an anticipated motion to preclude. Careful consideration needs to be given to asking enough tough questions at an expert's deposition to establish a record that will support a persuasive motion to preclude the expert.
At the same time, you do not want to ask unnecessary questions about information developed through
investigation regarding bias and credibility, which would be more effective on cross-examination, and which would invite opposing counsel to seek to substitute experts.

James H. Rotondo, a member of this newsletter's Board of Editors, is a Partner in Day Pitney LLP's Hartford, CT, office. He represents a broad range of corporate clients in product liability, negligence, insurance coverage, and commercial litigation matters, and also serves as co-chair of the firm's Commercial Litigation Department.