The Perils of Expert Depositions and The Duration Thereof
Sometimes, Plaintiffs’ attorneys complain about the amount of time defense counsel spend deposing their retained liability expert. Of course they do.
Accordingly, we here at Abnormal Use offer these suggestions on how they can ensure that the depositions do not require so much time to conduct.
Produce a report. Obviously, in federal court, expert reports are required. However, in some state courts, reports are not mandated. Accordingly, defense counsel may appear at the deposition without a detailed knowledge of the nature and basis of the expert’s opinion. If defense counsel must spend the first portion of the deposition ascertaining the expert’s opinions, and then later exploring them in detail, then the process is slowed. If the defense lawyer knows beforehand what the opinions are or may be, then he or she can better prepare and conduct the exam more efficiently. However, without a report, the defense counsel must both identify and confirm the expert’s opinion before establishing the basis for said opinions.
Produce the expert’s file material well in advance of the deposition. If the expert appears at the deposition with a host of unproduced file materials, then a portion of the exam must be dedicated to identifying and explaining the purpose of those materials. Even production of the expert’s file before the deposition may not save time. For example, if the Plaintiffs’ attorney emails file materials to defense counsel at 5:00 PM the day before the deposition, then one cannot expect that much time will be saved at the deposition itself.
Show up on time to the deposition. Sure, we as lawyers are sometimes informal at depositions, and most of the time, a collegiality permeates the deposition room despite the antagonistic nature of the litigation process. However, if the Plaintiffs’ lawyer appears 15 minutes late for the deposition, it makes complaints about the length of the deposition somewhat disingenuous.
Determine how to address the lunch break. If time is a concern, then perhaps a brief lunch period can be scheduled or food can be ordered out and eaten as the deposition progresses. Obviously, there must be sufficient time for the court reporter to take a break and eat his or her own lunch, but if a 30 minute lunch break is suggested, and Plaintiffs’ counsel requests an hour instead, then complaints of the length of the deposition may be inappropriate.
Finally, prepare the expert for the deposition process. A number of experts are in the business of being experts, and they enjoy sparring with attorneys and avoiding answering even the most direct questions. Most defense counsel will be undeterred by such tactics and continue to ask questions to confirm and secure the full basis of the stated opinions. However, the types of games that some experts play in attempting to avoid questions can only prolong the process. Defense counsel is entitled to know both the opinion and their basis, and if the testifying expert wishes to delay offering that information at the deposition, then it will only take longer to procure that information from the expert during the exam.
Make certain that the expert has a mastery of his or her own file. If an expert is only prepared to spout off his or her own opinions, but cannot point to the specific documents or evidence supporting that opinion, then the deposition will last longer than expected. The expert has known for days, possibly weeks, that he or she is to be deposed, and answering straightforward questions such as “what is the basis of that opinion?” with something along the lines of “I read that in some other depositions” or “that is in one of the books upon which I relied” are not sufficient answers.