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Legal Research Made Easy: Expert Depositions Just One Click Away
By Craig Murphy
"Jesus bent down and started to write on the ground with his finger. When they kept on questioning him, he straightened up and said to them, ‘If any one of you is without sin, let him be the first to throw a stone at her.' Again he stooped down and wrote on the ground." At the outset I confess that I am not without sin. In fact, I am as guilty as any person could be. Nevertheless I am going to cast the first stone, albeit at myself.
I have failed to deposit expert deposition transcripts with TrialSmith, the deposition bank for plaintiff's counsel. I could give a number of excuses for my failure, but the truth is that I have not made it a priority, a routine practice or even a consideration following an expert deposition. Instead, I focus on the next critical item on my calendar and move on. As a result, I am going to use this article as a means of shaming myself into doing what I should have been doing all along. Perhaps along the way I might shame some of you into changing your habits and you will begin submitting expert deposition transcripts to the deposition banks.
I believe that there is a widespread failure of plaintiff's attorneys to deposit expert witness deposition transcripts with TrialSmith. Not long ago I logged on to TrialSmith to locate depositions for an expert witness. Despite the fact that defense counsel routinely retains this particular expert witness, no deposition transcripts were on deposit. As a result, I posted an inquiry on the NTLA listserv requesting deposition transcripts. The only response I recall receiving suggested I look on TrialSmith. I did not think much of it at the time and proceeded with trial preparation.
Recently I again logged on to TrialSmith looking for depositions on an expert witness whom defense counsel regularly retains. Once again I found no deposition transcripts available for the particular expert witness. I posted another inquiry on the NTLA listserv and received a few responses. This time, however, I was very surprised that there were no deposition transcripts available for review on TrialSmith.
I wanted to find out if it was just my mistaken belief that the two above mentioned experts were retained as frequently by defense counsel as I thought. Accordingly, I logged on to TrialSmith looking for deposition transcripts from an expert witness that I know has testified in hundreds and hundreds of depositions. Instead of finding numerous deposition transcripts for the expert witness, only four were available. Moreover, out-of-state attorneys had deposited the four depositions.
The particular expert witness (for whom I found four deposition transcripts) is retained equally by plaintiff and defense counsel. I called a defense attorney and requested that he inform me how many deposition transcripts were on deposit at DRI's deposition bank for this particular expert witness. Only a few deposition transcripts had been deposited.
The clear indication is that not very many of us are depositing expert witness depositions with the deposition banks. That should have come as no surprise to me since I have never submitted an expert witness deposition transcript to one of the deposition banks. Thus, I am guilty of not doing my part to assist other attorneys whether in Nevada or other parts of the country. I am therefore casting the first stone at myself because I have no excuse for my failure to deposit expert witness depositions with the deposition banks.
A case of self-imposed guilt can motivate a person to take action. I immediately decided that I would submit the expert depositions in my office to TrialSmith. The process is easy and relatively painless. One merely has to copy the deposition transcripts and mail them to TrialSmith. Deposition transcripts can also be e-mailed to TrialSmith. I encourage everyone to take a few moments to dictate a memorandum to your legal assistant setting forth the cases wherein expert depositions can be copied and mailed or e-mailed to TrialSmith.
Not only do I encourage you to submit your expert witness deposition transcripts to TrialSmith so that I can review them the next time I attempt to locate deposition transcripts, but for another less selfish reason. A person can learn a lot by briefly thumbing through old deposition transcripts. In reviewing my deposition transcripts before sending them to TrialSmith, I observed a number of general principles that I employed or failed to employ that make for better depositions. Better depositions translate into better resolution of cases. Some of my observations are as follows.
1. Have a goal. While this sounds so simple, it is of utmost importance. Before taking a deposition, counsel must decide why the deposition is necessary. Do not take a deposition merely for the sake of taking a deposition. Counsel should have a specific purpose for taking the deposition. Without a goal, counsel does not have a plan of how the deposition testimony can fit in with the case theory and the case theme. This presumes that you have developed a preliminary case theory and theme before you begin taking depositions.
There are many goals of expert depositions beyond discovering the expert's opinions. In fact, with the revision of the Nevada Rules of Civil Procedure relating to expert witness disclosures, the expert's opinions should be known well before the deposition. As a result, other goals must be considered and pursued. Otherwise, you are spending money for information you already have.
2. Be prepared. This is so basic that it should not have to be mentioned. However, it does. There is a saying that 90% of success is just showing up. That may be true for other endeavors, but it is not true in the practice of law. In the practice of law preparation is the key to success. There is no substitute for preparation. The strength of a case is due in large part to what is accomplished during discovery. The quality of discovery directly influences the quality of performance at trial. As a result, the saying should be that 90% of success is based upon preparation. Rationalization to the effect that "I have been through hundreds of depositions like this one so I will just wing it" is a clear indication of lack of preparation. Look back over your expert deposition transcripts and compare your results with your level of preparation. See if there is any correlation. It just may effect how you prepare for your next expert deposition.
3. Obtain admissions and concessions. The deposition of an opposing expert does not have to be confrontational. Reserve the areas of contention and head on confrontation for a specific time in the deposition. By planning ahead and preparing for the expert deposition, there should be many questions that can be asked that the expert must agree with. The areas can relate to facts, measurements, duties and obligations, methods of investigation, scientific analysis, accuracy and authenticity of documents, agreement with the qualifications and training of your expert witnesses, agreement with the methodology employed by your expert witnesses, and the accuracy of demonstrative exhibits.
An expert witness is typically less inclined to agree with you or give concessions after he or she has been confronted or attacked. Thus, it is best to obtain admissions and concessions from the opposing expert before you have any direct confrontations or challenges to the expert's methodology and opinions. Fully explore all areas of the opposing expert's report that are favorable to your client or that support your theory of the case. Obtain admissions and concessions that support special jury instructions that you may need in the case. Similarly, obtain admissions or concessions to support or defeat anticipated Motions in Limine. In order to do that, however, you must plan ahead and be prepared.
By going into these areas where you can find some common ground with the opposing expert witness, you have set the stage for a great part of your cross examination of the opposing expert at trial. You will be in a position to obtain a series of affirmative responses to your specifically targeted leading questions on cross. If the expert refuses to concede any of the points of agreement at trial, you will be prepared to challenge the expert with his or her deposition testimony.
4 Expose bias. Bias can be demonstrated in many ways. There can be inconsistencies in the facts relied upon by the expert witness. The expert's opinions may not accept or rely upon adverse facts. In fact, adverse facts may be totally ignored. There may be errors in the methodology or calculations utilized by the expert. There may be inconsistencies between the facts relied upon by the expert and the facts given by other witnesses during their depositions. The amount of money earned by the expert in the present case, on an annual basis and for the time he or she has been testifying as an expert are reasonable areas to explore to establish bias. By planning ahead, testimony that can be used to establish bias can be obtained innocuously during the deposition for later use at trial. If the expert claims not to know how much he or she earns and has earned as an expert witness, in the appropriate case, you may have to follow-up such lines of questioning with interrogatories, requests for production and requests for admissions. Blanks left in the deposition to be filled in later will never be filled in.
5 Use opposing expert depositions to better prepare your case. If taken early enough in discovery, you may be able to eliminate areas of weakness in your case. Do not run or hide from the weaknesses in your cases. Weaknesses must be addressed head on. Determine areas where the opposing experts have criticism of key areas of your case. Determine if the experts have any criticism of your client or you client's actions. Determine if the experts have any criticism of the police or other investigators. Determine if the opposing experts have any criticism of your experts' qualifications, methodology or techniques. Determine your experts' opinions that the opposing experts are critical of and which ones they agree with. Ask what errors the experts believe your experts made. Armed with this information, dig in to your case and eliminate or reduce all the areas of potential weakness in your case.
6 Use cutting edge resources and tools. Use cutting edge resources so that you have ample ammunition to confront and challenge the opposing expert. At some point in the opposing expert's deposition you are going to have to "draw blood" if you are going to be able to use it effectively. Your confrontation must be specifically targeted to be effective. If your aggression and challenge to the opposing expert is done incorrectly, halfheartedly or otherwise misses the mark, the likelihood is that you will inflict greater harm to your case than to your opponent's case.
To properly confront and challenge an opposing expert, obtain prior deposition transcripts and prior reports in other cases. Check all of the entries on the expert's CV for accuracy. Review all of the expert's publications. Determine if the expert attended all of the seminars he or she claimed to attend. Determine if there are any areas on the CV where the expert made any misrepresentations. Google the expert. Review all case law wherein the expert's name is mentioned. Check the expert for Daubert challenges. Go to the expert's website. If the expert is a doctor, investigate whether he or she has been sued for malpractice. Verify that the doctor is in fact board certified. Leave no stone unturned.
This level of investigation and preparation for an opposing expert's deposition is driven by the case value. It is incredibly time consuming and expensive. Someone has to obtain all of the expert's publications and review them. Someone has to investigate the accuracy of the entries on the expert's CV. Someone has to obtain and review the prior depositions and reports. Each such review may reveal additional sources of inquiry and information.
In a medical case your expert or medical consultant should review the opposing expert's reports. If there are areas of concern about the opposing expert's opinions in a medical case, you may want to have a medical doctor listen to the deposition online and instant message you with analysis and follow-up questions. Once the opposing expert knows that he or she cannot misstate the medicine or mislead you, he or she may become more constrained. In this type of deposition, you cannot give in. You cannot accept non-responsive answers to your questions. Once you start hitting pay dirt, the expert will retreat to the use of jargon and opposing counsel will start objecting to your questions. If you do not remain focused on your goal and remain steadfast in your insistence that the opposing expert answer the question asked, you will have lost the battle and perhaps the war.
For the majority of us this level of preparation for an opposing expert or doctor's deposition is not possible without help. The good news is that there are companies and services that provide this level of assistance and preparation. Outsourcing is not just for large corporations. There are many nurse consultants who will obtain, organize, review and summarize medical records. Beyond that basic level, there are companies that analyze the medical records and opposing expert reports and explain them in detail. The companies provide specific areas of inquiry and questions for the deposition of the opposing expert or doctor. Medical doctors will be available in real time via the Internet during deposition or trial to instant message you about the testimony and provide you with immediate follow-up questions. The only equipment needed is your laptop computer, a wireless Internet card, and a microphone. The medical doctors are typically located in India and charge considerably less than a doctor would in the United States.
Armed with such cutting edge tools and preparation, if you are not in a superior position to the opposing expert or doctor, you will at least be on equal ground. You will be armed with the element of surprise because in most instances the opposing expert will not have seen or been prepared for this type of deposition. You will have equal footing with the doctor or expert on the medicine or other areas of expertise. Instead of retreating or moving on to a new line of questioning when the expert starts getting technical and obfuscates by using jargon, you will be able to go head to head and toe to toe with the expert or doctor. Such a level of commitment and preparation will set the tone for the case and greatly impact the settlement value and trial strategy.
Those are my observations about depositions from the most basic principles of being prepared and having a plan to the most cutting edge tool of having a medical doctor sit in on your deposition via the Internet. In order for any of us to employ and utilize these principles, we must have access to the opposing expert's prior deposition testimony. In order for each one of us to be as successful as we can for our clients, we must take the extra step after taking an opposing expert's deposition and submit the transcript to TrialSmith or another deposition bank. I encourage you to make that your routine practice following any expert's deposition.
John 8:6-8, NIV Bible.
2 TrialSmith, 5113 Southwest Parkway, #285, Austin, TX 78735.
Craig Murphy, Esq. is a founding attorney with Murphy & Murphy and practices primarily in the area of personal injury law. He is a member of the Nevada Trial Lawyers Association and currently serves on the Board of Governors for NTLA.