Always Review Opposing Expert’s File - A Golden Opportunity

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An expert deposition may be the last place one would expect to have an “Ah-ha!” moment, but it can happen. Some lawyers are intimidated when deposing an expert.  One might assume, “Experts are skilled testifiers—they never slip up!” That may be so in many cases, but not all. 

A few years ago, I took the deposition of a nationally known and well-respected medical expert, Expert X. He was the head of every related medical organization and honorary society imaginable. When Expert X walked into the conference room for the first time, I knew he would not make it easy.  As it turned out, I had no idea just how easy he would, in fact, make it.

At the start of the deposition, I asked for Expert X’s complete file. My practice was, and still is, to examine an expert’s file in detail. I have seen many deposing lawyers go through this task with as much enthusiasm as looking forward to a root canal. However, a thorough approach may prove surprisingly fruitful.

As I was looking through X’s file, I came across copies of deposition transcripts from the case. Boring, right? This stack included the opposing party’s deposition that I had previously taken. Just as I did with the one before it, and much to my opposing counsel’s annoyance (complete with eye rolls and dramatic sighs), I began looking through the transcript. What I found was GOLD. 

While reviewing his client’s testimony, Expert X had taken the liberty of writing his impressions of the defendant doctor’s testimony on the transcript. These little gems included comments, such as “not good,”  “very bad,”  “no concern for patient,” “damage control” and my personal favorite, right next to the portion of the transcript where the defendant attempted to justify his ill-advised procedure on my client, Expert X had written “B.S.”  

Upon this discovery, and understandably startled, opposing counsel rapidly began making objections, none of which was valid or mattered by that point. It was too late for his expert; it was too late for his client. A side lesson here—always review your expert’s file inside and out, so you’re not surprised when these embarrassments surface.

I moved on from the transcript fairly quickly. Two months later, while cross-examining Expert X at trial (yes, they actually brought him to trial), I had the pleasure of displaying for the jury his comments from the deposition transcript and asking him what he meant by each. His answers did not matter. The jury was done with him and done with the defendant doctor. Unanimous verdict for the plaintiff. Thank you, Expert X!

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