Effective Deposition Questions for Expert Witnesses

September 16, 2020

After covering the usual areas regarding the expert’s opinions, all of the documents reviewed, and supporting facts for the opinions, consider probing the expert concerning some areas the expert (and opposing counsel) might want to avoid.

Are there weaknesses in the opponent’s case?

Ask the expert whether the client or counsel expressed any concerns about the client’s case. Was there anything about the expert’s opinions that reflected these concerns, or did the expert need to develop additional opinions to address the concerns or weaknesses? Ask the expert if any weaknesses were spotted by the expert (or counsel) at any point in the development of the opinions.

Are there any inconsistencies?

Ask the expert if anything was discovered, recognized, or discussed with counsel or the client that was — or might be — inconsistent with any of the expert’s opinions. This would include not only the opinions, but any of the materials or facts relied on by the expert. Most often, there are conflicting sources for the expert’s opinions and getting the expert on the record with such an acknowledgment would be helpful for cross-examination at trial.

Are there any additional witnesses or facts needed to support the opinions?

This is another way of asking whether the expert (or counsel) is planning to do any additional work on the case, including fact depositions or further study by the expert. Follow-up questions are important to determine if the additional work has been discussed, is in development, or has been scheduled.

Was the expert limited in the development of the opinions?

Ask whether a budget was discussed, suggested, or imposed on the expert’s activities. Conversely, ask the expert to assume that there was an unlimited budget and no time constraints. Under that scenario, would the expert do any additional work to support the opinions? Any admission by the expert about work not completed might be effective at trial on cross-examination.

These same areas need to be a part of your own expert’s preparation for a discovery deposition and for cross-examination at trial. Avoid the trap of focusing only on the facts of the case and consider how some questions about the expert’s preparation and development of the opinions can be used to discount an expert’s opinions.