Asking the right questions in a depostion can tell you alot about an expert witness.
The typical deposition of an expert witness looks like preparation for a great contest—mano a mano—between lawyer and expert. Like the board game Stratego, each side lines up its pieces and then makes its moves, trying to capture the other side’s flag.
With an expert witness, the enemy’s hidden flag is the expert’s fatal flaw—some awful error of fact or analysis that, if discovered, spells an end to the game.
Where is it? Starting with the witness’s curriculum vitae, the questioner goes on and doesn’t stop until every factual and theoretical stone underlying the expert’s opinion has been turned over. Surely the flag is in there somewhere.
Only it usually isn’t. When there really is a flag a fatal flaw that can destroy the other side’s case it is usually apparent before the deposition if you’ve done your homework and gone over the case with your own experts. Then how and when you reveal the flag becomes one of the keys to your entire case strategy.
But instead of a flag, the typical product of an expert’s deposition is a carload of quibbles that lawyer and expert fight over in the trial to the boredom and annoyance of both judge and jury. What was meant to be mano a mano turns out to be “quibble a quibble.”
This doesn’t mean you shouldn’t be thorough—even exhaustive. But if all you do is hunt for the flag, there are too many other things you’ll overlook.
Besides learning the expert’s theory and its factual basis, other things you can do in a deposition include:
• Inquiring about the existence of other respected theories or approaches.
• Evaluating the witness on direct examination.
• Testing the witness’s ability to handle cross-exam.
• Finding out what makes the witness angry.
• Gathering impeachment material.
• Asking what the witness did and was shown and told in preparation for the deposition.
• Evaluating the lawyers on the other side.
• Learning the opponent’s overall theory of the case.
• Forcing an early settlement.
Link:
http://www.abajournal.com/magazine/article/know_what_youre_after_experts_will_tell_you_a_lot_in_depositions_if_you_ask