- Andrea Dobrin
This week we will turn our newbie learning session into a brief but passionate plea for any new expert witness to take the time to read most if not all of the depositions in your case.
I will not lie- there are several negatives to doing this work. First, you cannot bill your client for all of this reading unless you are so very, very famous and renowned that people not only open their wallets to you, they literally fling money at you. So, unless you are that person (and we acknowledge you not likely reading this Blog), if you attempt to bill for all the time this takes, you will have very few clients going forward.
So… how do you approach this task? Here is what I recommend- open every single deposition you are given. You only need to read just a few pages to figure out who this person is, and what their role is in the case. Create an outline of the major players so you can keep everyone straight. I recently had a case with nearly 60 depositions to organize – GACK! (For the uninitiated, “Gack” is a reliable choking sound borrowed from old Warner Brothers cartoons).
Separate the depositions into three piles- those that are critical, those that might be important, and those that are generally unrelated to your area of expertise. For me this is often an expert medical doctor or engineer. Try as I might I do not speak medical or technical. That said, I will often skim through just to learn a little something new. Sometimes I have been surprised by how helpful this can be!
As you start to read your stack of critical depositions you will find that people’s “voices” and their intentions come across fairly quickly- the characters are taking shape. However, now is the time to remember that people lie. Sometimes it is a hard lie, “that isn’t me on the tape running away with the bloody hammer.” And sometimes it is a soft lie, “I heard someone yelling, but thought it was just an episode of Law and Order.” Most often it will be the well-known recall lie, which in a deposition is always “I don’t remember”. It is staggering how many normally intelligent people think that consistently saying they don’t remember is a great strategy. And yes, your attorney will say, “do not guess”….but that doesn’t mean it is okay to forget everything. To quote Tennessee Williams, “there ain’t nothin’ more powerful than the odor of mendacity.” (Which basically means, everyone knows what the witness is doing, which discredits them and often your client as well.)
Here is what is important- do not become seduced by reading just the stack of depositions that you have determined are critical, especially if you have become comfortable in the underlying facts to your opinion. If you do, you may find yourself seriously in trouble when it is your turn to be deposed.
Recently I read the expert report and deposition of a very well-known Expert Witness. Her pedigree was as long as my arm. Honestly – her resume was 12 pages long! Double Gack! During her deposition it came to light that her opinions on the case were based on two critical errors. First, she used her staff to assist with the heavy reading. In this system, the underling would summarize a deposition for the expert, who would then rely on this summary to help form her opinions. Sounds efficient, right? Wrong. You see the underling didn’t read all or even most of the depositions. The summary was adequate to just the depositions that were read, not to the full picture of the case. Had fuller reading been done, the staff would have realized that the information handed over to the expert had been specifically refuted through the testimony of others. Egg on face moment for sure.
The second mistake this very learned person committed was in heavily relying on the testimony of two individuals who were second bananas to the case’s star performers. Again, had she read all of the documents (depositions and records) she would have learned that both of the individuals she was relying on had lengthy drug and criminal backgrounds and one had a serious axe to grind against the defendant. All of this was uncovered by the lead attorney (brilliant lady!) who quickly exposed the Expert Witness as having trusted two crappy witnesses and a summary document by a staff person who had not done their homework. Goodbye sterling reputation.
Bottom line- depositions can provide critical information to forming your opinion, but having a suspicious and slightly cynical, investigative brain can save you from looking incredibly stupid. Put the work in!
Next week- being deposed is scary!!!