Taking deposition of the plaintiff’s expert must be done before every trial. The expert’s opinions need to be known and parsed. However, they may not need to be preserved and utilized in lieu of live testimony. The plaintiff’s attorney may want to limit the monetary outlay, so in lieu of live testimony of the expert, the plaintiff’s attorney may choose to videotape the deposition of their expert to play to the jury at trial. Let me tell you: As someone who has had the privilege of trying many cases, I appreciate the opportunity to cross-examine the plaintiff’s expert in front of a jury and see if the opinions the expert rendered will hold up under fire.

Many defense firms have associates take the expert depositions. Depending on the associate, this may or may not result in a less strenuous opposition to the plaintiff expert’s opinion. This note is designed to change that; it is not intended to be an exhaustive study of expert depositions. Nor is it designed to give every thought imaginable in every case. It is designed to help defense lawyers take better expert depositions.

1. Do not videotape your opponent’s experts. In some scheduling situations, if a plaintiff’s attorney fails to order a videographer, you may want to do so for your own experts. But if your expert plans on testifying, have them do it live in front of a jury. It is simply more effective that way.
2. Do not qualify the opposing expert. Why do you want to make a record that they were top of their class at Stanford? Do you think it helps your client or harms them? Likewise, when your expert is being deposed, if the other side ignored the expert’s qualifications on cross, you need to qualify the expert. Why? In the odd case the expert cannot come to court, at least you could read the testimony to the jury. Remember: Bringing an expert to trial is an extremely expensive task. Most lawyers do not have that capital laying around their offices. Before deposition, when the expert demands four hours for fees, keep in mind that no expert deposition should take longer than 90 minutes. Still, I may pay for two hours; if it goes longer, you get to pro-rate the hour and not worry about getting the overtime money back from the expert.
3. Experts do not need to be told everything they say will be written down or warned about clarity—they have done this before. No need to instruct on these issues. It is a waste of time at $2500/hour or $40/minute.
4. Read the medicals. Really read the medicals; do not just look at a summary. Check the medical history. Check the strength and side effects of medication being taken in the past. Check conditions, treatment, drugs & alternative treatments online. The internet works wonderfully. AI can also be used, but be careful. Ask real questions in deposition. Ask about alternatives considered to treatment plans, ideas for treatment that were rejected, and why. Challenge the expert, but ready yourself with real preparation.
5. Avoid taking depositions via checkbox. Use some thought. You may not think much of the lawsuit or think little about the future of the case, but an effective expert deposition is persuasive that the case should settle. Be professional. Be persuasive.
6. Ask what they understood their case focus would be. If asked about causation, are they just relying on what the plaintiff told them, or did they carefully look at the prior history? Experts can rely on hearsay—but repeating hearsay? No. If the plaintiff expert’s sole source of causation is hearsay from the plaintiff, the admission of such hearsay should not be allowed into evidence. Furthermore, do not allow plaintiff’s expert to attempt to lay a foundation for the medical records he never kept, secured or saw before the case was sent to him. Make the plaintiff lay a foundation for medical records. Most do not know how.
7. Ask what they read or did as an expert. If they tell you they read the medical records or depositions, ask if they personally read them and how much time they spent on the task. Ask them if they relied on a clerk or someone else to read and summarize documents. Did they receive summaries from the plaintiff?
8. Ask about all opinions and about the basis for each opinion. If there is more than one, get all of the bases and make sure you have that. Do you have all reports? Letters? Texts? E-mails? Any withdrawn? All conversations? Anyone else the expert spoke to on the case? Was there a recording or video of the exam or interview with plaintiff?
9. Once you have all of the opinions and the bases for all of them, the documents reviewed, and have asked a few fun questions, you are done. From start to finish, it should be 60-100 minutes. No more. No less.
10. Keep in mind that some experts will try to bully you. Ask if they talk to their patients that way. They are obligated to answer. When you ask a question, you should expect and demand an answer to your question. You may ask them to explain to you why they think something in the same way they would explain it to one of their patients.
11. Plaintiff’s attorneys are making business decisions constantly. Placing doubt in their minds is helpful. Taking an effective expert deposition creates doubt.
12. As a final thought, be careful with too many stipulations. By that, I mean you should not try to appear suave and debonair with waiving foundation for documents. You like to argue, and you became a lawyer in a litigation firm. Argue. Grow. Good hunting!

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