The Appraiser as an Expert Witness: Conference with Counsel
(by Steven Babitsky, Esq. and James J. Mangraviti, Jr., Esq.) Prior to being deposed, the expert should insist on a conference with counsel. Counsel may, in an attempt to save time and money, advise the expert that no such conference is necessary and that he will come a “few minutes early” to the deposition to talk things over. While this may be expedient for counsel, it will almost always result in inadequate preparation for the expert. This type of last-minute review is a recipe for disaster and experts should refuse to participate in it. Experts need time to organize their files and their thoughts. Wise experts insist on a separate appointment with counsel, days – not hours or minutes – prior to the date of deposition.
To ensure proper preparation by retaining counsel, the expert should do the following:
- Consider a clause in one’s retention agreement that allows the expert to withdraw from the case if not prepared properly.
- Ask, “Do you want me to be unprepared for my deposition in your case?”
- Take all reasonable steps to ensure that retaining counsel properly prepares the expert for deposition.
At the pre-deposition conference, counsel and the expert should discuss any areas or issues with which the expert is concerned. Areas to cover include the following:
1. Housekeeping details. By definition, anything that the expert is concerned about may be a distraction and adversely affect her deposition preparation and performance. Upon receipt of the deposition notice/subpoena, thorough preparation calls for going over with retaining counsel the “little” but significant details:
- Anticipated length of deposition.
- Where to park.
- How to dress.
- How many attorneys will be present.
- Will the deposition be videotaped?
- Who will pay for the deposition? Can payment be achieved prior to the deposition?
- Will the expert be paid for time preparing for the deposition (approximate amount)?
- Will retaining counsel request the expert to agree to the usual stipulations and, if so, what are they?
2. The type of questions that opposing counsel will ask. In complex or challenging cases, it is not unusual to have a “run-through” with a vigorous mock deposition by counsel or an associate. The most difficult questions will be asked. The expert will be given an opportunity to reflect on the questions and answers. (See Chapter 5 for the types of questions experts should expect to be asked).
3. The questions (if any) retaining counsel will ask.
4. The pertinent legal standard for liability and causation. A good way to obtain this information is to go over with retaining counsel the likely jury instructions.
5. Identifying any privileged information or work product contained in the expert’s file.
6. A review of what the expert should and should not bring to the deposition. This includes the expert’s response o any subpoenas.
7. An update on the current status of the litigation. Counsel may share documents, interrogatories, and pleadings with the expert. If these are not forthcoming, the expert may request them for review prior to deposition.
8. A discussion with counsel of any prior contrary opinions the expert may have rendered in other cases. Problems are best dealt with when they are anticipated and disclosed to retaining counsel in advance.
9. A review of the expert’s qualifications with a discussion of the bases for her opinions and how they fit into the case. The expert should be prepared to “connect the dots” and succinctly and convincingly state why she is qualified.
10. Amount of detail to provide. This will depend upon whether counsel is trying to settle the case or is anticipating a trial. Does counsel want to limit the expert’s answers primarily to “yes,” “no,” or short but truthful replies? Are there particular areas of inquiry/questions that counsel would like answered with as much detail as possible? These could include:
- computations, and
- references relied upon.
11. Will there be a Daubert issue? The expert and retaining counsel should discuss if a Daubert challenge to the expert’s testimony is likely. If the expert is not very well prepared to defend his methodology, his opinion may be stricken later. Areas the expert should be prepared to address regarding his opinion include the following:
- the theories and techniques used and how and when they have been tested,
- the error rate or potential error rate,
- peer-reviewed literature that supports the conclusions and opinions,
- the reliability of the scientific data used and whether they are generally accepted in the scientific community,
- use of appropriate methodology, and
- whether the opinion is for litigation only.
A comprehensive pre-deposition conference has many benefits. First and foremost, the expert will be given a fairly good idea of the types of questions that may be asked. The expert will have an opportunity to think about the difficult questions posed and truthful and artful replies. Experts who are ill-prepared will quickly reveal this at deposition. The expert will also be updated on the status of the case and will have counsel review the applicable legal standards and “magic words” that must be used when giving an expert opinion. Finally, there will be an opportunity for counsel to review the expert’s file prior to it being produced at the deposition (if it has been subpoenaed).
(Excerpted with permission from “Depositions: The Comprehensive Guide for Expert Witnesses” by Steven Babitsky, Esq., and James J. Mangraviti, Jr., Esq. You can read more about this 425 page hard-bound text or order your own copy at http://www.expertcommunications.com in the Training Products section.)