Winning strategies for deposing the adverse expert.

In a medical negligence case, your cross-examination technique can lock the defense expert into a position you can exploit at trial.

No matter what your client's medical negligence case is about, the deposition of the opposing expert can be the determining factor in whether you win or lose. An effective deposition can also facilitate a settlement in the case, making the time you spend preparing for and taking the expert's deposition a worthwhile investment, while saving you the time and the risk inherent in a trial.

There are essentially two methods of deposing an adverse expert: the interview and the cross-examination. The purpose of the interview deposition is to discover the expert's opinions and the bases for them. The attorney then consults with his or her own expert and conducts research to counter the defense expert during trial.

When using the cross-examination technique, the method I recommend, the purpose is to paint the expert into a corner by asking every question that might be relevant and by exploring every possible weakness. This should provide you with ammunition to use during the cross-examination of the expert during trial. There are few worse events at trial than an ineffectual cross of the defendant's expert.

This technique locks experts into testimony that will be virtually impossible to change at trial. Another advantage is that experts will be unprepared for tough questions during the deposition because they expect to field the hardball questions during cross at trial. If, at the deposition, you only tiptoe around the weakness you believe you can exploit at trial but do not nail the door shut, experts will be able to negate your points by the time you get to trial because they will have time to contemplate your points and to consult with counsel. Any crack in the door you leave open will permit an escape. If, on the other hand, you pursue all lines of questioning, you will leave experts little wiggle room by the time you question the same ones on the stand.

The only disadvantage to the cross-examination technique is that it is much more time consuming and work intensive than the interview technique. But, if it is done correctly, it is more likely to lead to settlement because the opposing counsel will realize you have negated the impact of the defense witness. Most important, if you use this method and you do go to trial, you will be far better prepared.

The deposition of the adverse expert has many goals, including the following:

* laying the groundwork for your cross-examination at trial;

* showing the expert's bias or otherwise undermining the expert's credibility;

* getting as much information as possible regarding the expert's opinions and the bases for them;

* gaining concessions from the expert to help prove points you wish to make through the use of leading and hypothetical questions;

* attempting to get the expert to support even a small part of your case (the defense counsel cannot undermine his or her own expert, so you can tell the jury that even the defendant's expert agrees with the plaintiff on a certain issue);

* discovering the weaknesses in your client's case; and

* judging the demeanor of the expert (this is best accomplished in person--not through a telephone deposition).

It should not be the goal of the deposition to learn the substance of the expert's specialty (for example, it is not your purpose to learn the medicine). Before the deposition, you should have educated yourself by consulting with your own expert and by reading articles and texts. If the defense expert surmises that you do not have a grasp of the subject matter, the expert will be more likely to try to mislead you.

Getting prepared

The first step in taking an effective expert deposition, particularly in a medical malpractice case, is taking a thorough deposition of the defendant. If you have narrowed the areas of escape for that defendant, you will limit the facts available to the defense with which the defense expert will have to work. Experts must play with the cards they are dealt. During the defendant's deposition, it is your job to limit the number of cards in the expert's hand.

Before deposing defense experts, obtain their curricula vitae and read any publications they have written that pertain to the subject of the case. If an expert has written anything that helps your case, he or she will have to concede this point or look dishonest by contradicting his or her own writing.

It is also helpful to have a transcript of the defense expert in a case where he or she testified for a plaintiff. You can obtain transcripts of experts by contacting the ATLA Exchange or other trial lawyers in your area. You may be surprised at how differently the expert viewed the same subject when called as an expert for the plaintiff.

Through the notice of deposition, require experts to bring their entire file on the case, including all letters, reports, and materials they have reviewed and any notes they have taken. From these documents, you can gain an understanding of an expert's thought processes. If possible, obtain this information in advance from the defendant through a document request.

After compiling all this information, prepare an outline or a check-list of the areas you intend to ask the expert about, but do not write out the questions. You must be prepared to go where the expert's answers lead. You want to interact with him or her and be spontaneous. An attorney who reads the questions is less likely to listen to the answers and will fail to ask the unanticipated, but logical, follow-up questions. Don't be afraid to follow an unexpected tangent, as long as you know where in your outline or notes you must return.

The only possible exception to the strategy of not writing out questions is when you wish to set a trap through a series of carefully written questions that will lead the expert into a concession.

Besides preparing questions, prepare exhibits in advance so that your questions will evolve more smoothly. You will appear more professional and better prepared if you are not fumbling for documents or asking for a recess to copy exhibits.

Most important, know your case. Discuss it fully with your expert so you are aware of areas he or she deems important. Also, read articles and texts on the pertinent subject matter so that you know the data and issues better than the deponent.

Handling the questioning

Always try to stay in control of the questioning. If the witness is talkative, however, it may pay to let the expert talk. The deposition will take longer, but you may get useful information without asking for it. Evaluate whether the expert is actually imparting information that can be used to soften his or her position. If the expert is simply giving a speech, cut it off and resume control of the deposition.

If a witness is trying to avoid answering a question directly, the odds are it is because the answer would be helpful to the plaintiff. Whenever an expert attempts to dance with you, stay the course; make the expert answer. Never let go, be a pit bull.

If you are anticipating a problem in your case in chief, you may succeed in making use of the defendant's expert to solve your problem. For example, I was involved in a case in Virginia, a state that requires experts to know the standard of care as practiced in Virginia, not in the nation. My expert was a radiologist who had never practiced in Virginia, and I was concerned that the defendant would seek to disqualify her for not knowing Virginia's standard of care. I was, however, able to elicit from the defense radiologist a concession that all radiologists, whether in Virginia or elsewhere, are required to follow the standards of the American College of Radiology. I later cited the defense expert testimony to fight an attempt to disqualify my expert, since she was familiar with these standards.

Examining the expert's background

If you are able to taint the experts' credibility during voir dire or cross-examination at trial, it may color their testimony in a way that will cause the jury to discount their opinions. Accordingly, delving into experts' backgrounds during the deposition may give you the basis to show they are biased or unqualified.

Begin the deposition with background questions. Be friendly and relaxed at this stage to disarm experts. If you get combative earlier than necessary, you will make it more difficult to obtain concessions. Although there may come a time when it is necessary to become combative, depending on how forthcoming the witness is, it is best to do this as late in the deposition as possible.

Curriculum vitae. Go through the witness's curriculum vitae. Ask if he or she has ever had any problems with medical licenses, hospital privileges, and so forth.

Find out what journals and texts he or she routinely reads and relies on, even though the expert is unlikely to admit they are authoritative (a difficult admission to get). If you find supportive material in any of those publications, in cross-examination at trial, you can use the fact that the expert is familiar with the material and has relied on it.

In reviewing the curriculum vitae, you may find that the witness has an extensive list of publications, but are any of them pertinent to this case? Ask him or her to identify those that are. You can diffuse the impact of a long list if most of them have nothing to do with issues in the case.

The publications might also show that this expert has a specialized interest in a particular field that also has nothing to do with the case. For example, the expert may be an oncologist with a special interest in colon cancer, yet your case deals with breast cancer. You can depict the witness as an expert in colon cancer but not as an expert in the specialty in question.

Explore the expert's experience. Has he or she been in private practice similar to the defendant's, or does the expert spend a great deal of time in hospital administration or writing rather than treating patients hands-on?

Prior testimony and prior associations. Fully explore whether the witness has had prior experience as an expert. Differentiate between the number of cases he or she has reviewed; the number in which he or she has given depositions; and the number in which he or she has testified at trial or at mandatory medical malpractice arbitration hearings.

For each category, determine the percentage of those cases for which the expert has been retained on behalf of defendants and whether the number of cases has changed in the last 5 to 10 years. This information can be useful in cross-examining the witness on the question of bias. If no bias is demonstrated, simply avoid asking these questions at trial.

Ask witnesses the last time they testified for a plaintiff. If experts give inconsistent testimony depending on which side has retained them, you will likely find that inconsistency by reviewing old transcripts where they testified for plaintiffs.

Another strategy is to ask witnesses if they would testify for a plaintiff if asked to do so. If the answer is no--regardless of the merits of the case--depict these experts as having a bias against plaintiffs.

If, on the other hand, experts say they would be willing to testify for plaintiffs, ask if they would do so against a local physician. Most likely the answer will be no, because most physicians are uncomfortable testifying against colleagues in their area. You can refer to this testimony in defending your experts if they are attacked by the defense for being from other jurisdictions.

Witnesses should also be questioned about whether they know the defendant, and if so, how. A personal friendship can be exploited by characterizing the expert's testimony as not being objective. More commonly the relationship, if any, is purely professional. Yet, even a professional relationship suggests that the expert would be reluctant to criticize a colleague who he or she sees in the hospital and with whom he or she attends conferences.

Finally, ask experts about ever having been retained or represented by the same attorney or law firm in previous cases. If there is a prior relationship with a firm, you can suggest that an expert is on the "lawyer's team."

General background. Always be sure to go over all materials experts have reviewed, notes they have taken, and parts of records or depositions they have marked as significant. You may gain insight into their opinions through these materials.

Review all correspondence between experts and counsel. Occasionally, you may find something useful.

Ask if experts have ever been sued. If so, see if any of the circumstances were similar to your case because, if they are, this might demonstrate bias. On occasion you may even find that when a defense expert was sued, the expert testifying on his or her behalf was the physician now being sued. If this occurs, you can characterize the expert's testimony as merely returning a favor.

Ask if experts did a literature search, and, if so, obtain a list of the articles found, not just the ones that support their theories. There may be many articles that support the plaintiff's theories as well. If so, ask why experts chose to ignore them.

Finally, be sure to test qualifications because in rare instances you may be able to convince the judge to disqualify an expert. If not, you may get the jury to discredit the expert in their minds.

Ask experts how many times they have performed the procedure in question or treated the disease at issue. If the answer is not frequently, hove can they be expert on the propriety of the defendant's conduct?

Also, ask if witnesses consider themselves expert in a specific subspecialty of their field. For example, in a cancer case, if the issue is how fast a tumor grew, the expert oncologist, although an expert in cancer, would not likely have the same expertise as a tumor biologist. In that situation, ask if the witness considers himself or herself an expert in tumor biology. If the answer is no, you can challenge his or her expertise to testify on that issue.

Exploring the expert's opinion

As mentioned earlier, you should be familiar with the experts' writings as they pertain to the case.

Show experts their witness statement if your court requires one (Rule 26(b) on statements in federal court), and then have them identify it and ask if it accurately reflects their opinion. If it is a general statement imparting little information, you might consider, before the deposition, requesting the court to order a more specific one. When you are lucky enough to have an expert's actual written report, you will want to review it line by line.

Ask experts what they are getting paid for giving deposition testimony, for reviewing records, and for giving trial testimony. Find out how much they have billed to date and how much they intend to charge for testimony at trial.

While exploring the experts' opinions, make certain you differentiate their opinions on standard of care (or negligence in a non-medical-malpractice case), damages, and causation. Experts may have been designated to address one or two of those issues. If so, limit your questioning and the testimony to those areas. If it is unclear which issues are designated, you must clarify this at the outset.

While exploring each opinion separately, have witnesses establish the basis for each one, and make certain they have provided every basis for that opinion. Attack each opinion and each basis. After you have heard all the opinions, ask if there are any other opinions the expert plans on testifying to at trial. You are trying to limit an expert's ability to change testimony once you are at trial.

By this time, you should already know an expert's opinions and should have obtained help from your own experts as to the weaknesses in those opinions. Those weaknesses should be probed. In technical cases (for example, medical malpractice, products liability), you must review the literature and proper terminology so that experts cannot mislead you. In medical malpractice cases, Medline, Healthgate, and other computer Web sites can be a great help in obtaining such literature.

Ask experts to define the term "standard of care." If they are using the wrong definition, do not correct this. You may be able to use it against an expert at trial or in a pretrial motion to limit his or her testimony. To be certain you know an expert's opinions as to each allegation against the defendant, ask if the defendant acted as "a reasonable and prudent physician would act under like circumstances" (or use the words that your courts have adopted to define "standard of care"). You will be surprised that occasionally when given the correct definition, an expert's opinion can be quite different.

Ask about what facts experts assume to be true to form their opinions. If the opinions are based on facts in dispute, ask why they presume those facts set forth by the defendant to be true, rather than the facts obtained from your client or through discovery. If there are contradictory facts, ask through the use of hypothetical questions how an opinion would be different if facts more favorable to your case were presumed true.

If the opinion is negated when experts assume a different set of facts, you can deflate their testimony at trial by convincing the jury that your facts are true. You will be surprised at how often you will get favorable opinions when the defense expert is asked to presume the facts you believe will be proven to the jury. Use of hypothetical questions to accomplish this is an essential technique.

Sometimes experts will concede what seems to be a minor issue, but you can make it a major one because of the concession. For example, a defendant's expert may assert that the defendant physician responded appropriately when the doctor viewed certain X-rays--a major issue of dispute in your case. Yet, the defense expert also agrees there was a delay in obtaining the X-ray. Now you can attempt to turn that delay into a major issue, one the defense expert has already conceded.

Another method is to get experts to concede that a point in dispute is one about which reasonable physicians could disagree. You may also get experts to concede that they might defer to one who is more specialized. For example, an oncologist might agree to defer to a tumor biologist on the issue of the likelihood that a tumor will recur.

If you are faced with an aggressive or overzealous advocate, encourage him or her to take extreme positions. An expert may think such a position is helping the defendant, but extreme positions will diminish the expert's credibility in the eyes of the jury.

Remember you are not only trying to elicit answers that help your case, you need to know where an expert can hurt your case so that you can be prepared. It is far better to find out where your weaknesses are at deposition than at trial.

Keeping the jury in mind

Finally, whatever question you ask, always consider how it will sound if read at trial to the jury. After all, the deposition locks the expert into his or her testimony. If the expert strays from it at trial, you need to read the inconsistency to the jury. This can be a dramatic moment in a trial unless the reading takes too long or is confusing.

So, if it has taken many pages to obtain a witness concession, at the end of the discourse, you must rephrase your question in a concise manner so that one question and answer can be read to the jury to make your point. This process also makes it less likely the witness will try to "wiggle" out of the answer at trial. Remember: Always keep the jurors' ears in mind during a deposition.

Michael H. Feldman is an attorney with Ashcraft & Gerel in Washington, D.C.