Attacking opposing expert mandates solid plan and plenty of preparation
Balancing Life and the Law
May 12, 2022
May 12, 2022
Chicago Law Bulletin – May, 2022
by Jeffrey J. Kroll
Jeffrey J. Kroll is a founding partner of Kaveny + Kroll LLC. He has achieved settlements and verdicts in a wide range of cases, from trucking accidents to medical malpractice to sports safety cases. He can be reached a firstname.lastname@example.org.
If I was told ahead of time that at half time of a Bulls game, I could win $25,000 if I successfully sank a free throw, do you know what I would do?
I would practice free throws every night with great diligence. Yet, oftentimes, in personal injury litigation when stakes are much higher, attorneys will often take an opposing expert’s discovery deposition with very little preparation or “practice.”
In both the free throw award and deposing the expert, only preparation and practice will amount to an equitable award.
In fact, when it comes to deposing opposing experts, many lawyers have a one-track mind: “I need to find a way to minimize the damage this witness is going to inflict to my client’s case.”
I think taking a more positive, glass half-full approach is the better tactic. By doing your homework, thoroughly preparing, and taking as much uncertainty as you can out of the equation, you can expose the expert’s weaknesses and, confidently, strengthen your own case.
A planned attack will foster creativity and enable the testimony of the opposing expert to potentially induce a settlement or assist in building a solid case for trial.
Sure, the goal will vary depending on the circumstances and desires of the case. However, if examined correctly, the opposing expert can actually be an avenue for maximizing the outcome in your case, not a deterrent.
Not to sound like a broken record, but this cannot happen unless you have a plan and thoroughly prepare before the deposition.
What can one do to make the process less painful (and dare I say, fun)?
Here’s the quick and easy answer. When deposing a medical expert, for example, make sure you have all of the plaintiff’s medical records relating to the incident. Yes, all of them. If an incident aggravated a preexisting condition, obtain the prior records relating to that condition as well. Review those records ad nauseam, in preparation for the deposition.
Use a medical dictionary, reference book or Google to look up all the abbreviations and any unknown terms. If you are going to spar with an expert doctor, you better be armed with the appropriate lingo. When going toe-to-toe with a medical expert, one surefire way to lose credibility is mispronouncing words or not knowing an abbreviation’s meaning.
Prior to the deposition, set up a meeting with your own expert witness or medical consultant to discuss technical terms and/or obtain tips on the type of questions to ask the opposing expert. Review any pertinent medical literature. Review the expert’s curriculum vitae and research the credentials well ahead of time.
Sometimes, you may find a gem and locate a very distinct and different curriculum vitae that he or she previously produced at your deposition. It goes without saying, locate any deposition or trial testimony transcripts and thoroughly review them. If the opposing expert published articles or books, read the pertinent publications, and locate any criticism of those publications.
When the documents from record requests start populating your emails, the sheer amount will appear daunting. Your first instinct will be that you will never have time to read and digest every record. You must.
Weekends are probably a good time to review and organize records. If you want to be a successful trial attorney, you cannot assign that task to others. You need to know what is in all of the records.
Often, the success or failure of your case depends on how you handle the opposing expert witness at trial. Do not take for granted the discovery deposition. Utilizing the “fishing expedition” approach could be as dangerous as embarking on a deep-sea dive at night.
Your failure to establish a plan of attack will tell the expert (and opposing counsel) that you did not prepare for the deposition. When that happens, a savvy expert will make every attempt to confuse or mislead you. You will have only yourself to blame for a golden and missed opportunity.
Granted, there are times where it is beneficial to be vague at the deposition. Being vague is acceptable; being naïve is a sin. Know more about your client’s case than your opponent. That is the key to a successful deposition.
Knowing my basketball skill set, I would most likely miss the free throw, regardless of the practice. Yet, you will never miss injecting a favorable result in your case with thorough preparation and hard work when deposing an expert witness. If you are fortunate enough, the result will be nothing but net.
Read the full article: https://www.chicagolawbulletin.com/jeffrey-kroll-attacking-the-opposing-expert-20220512