Transcript

Miles Cooper: Howdy and welcome to the show. Coopers’ Code examines a legal issue and hits the highlights. So we all achieve the best results for our clients. I’m Miles Cooper. And with today’s guest, Bryce Gray, our litigation manager, we will be discussing how to prepare for taking expert depositions. Before we get into today’s topic, a few words about Coopers LLP.

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For more information, visit our website at coopers.law or email us at podcast at coopers.law. Tipping into today’s topic, Bryce, what’s your favorite way, just at the beginning, when you know you’re getting ready for an expert deposition, for you to start digging in?

Bryce Gray: I start by reviewing the expert’s CV and, if they’ve published anything, going through their articles, really digging into what it is they’ve published, first and foremost, and looking at that in conjunction with their expert report. And then the other thing that I look at right from the outset is what they’ve reviewed, or at least have purported to review – what they were provided – and going back through the case file to make sure that they were actually provided with everything in the most current records, et cetera; our expert reports to make sure that they have really truly the whole picture.

Miles Cooper: That makes a lot of sense. I will say one of the things that I think people sometimes get the mistake of is that an expert deposition is simple. And I’ll tell you a story about my first days as a young lawyer. We had a case where the experts were triple set and I got sent off with very little experience to go do an expert deposition. And obviously this was a low consequence expert in terms of the triple stacking. The guidance was find out everything in their file, find out how much they’ve charged, how much time they’re in on the case, what are their opinions, what they rely on, and if they’re going to be doing anything further before trial. And that was considered a complete expert deposition.

Bryce Gray: I think back to my first few expert depositions, and that’s exactly the instruction that I received. And, you know, that was it. I mean, you know, making sure one, that you had all of their opinions, no further opinions, and that they weren’t going to do any additional work or have any additional opinions. And that was it. And it wasn’t until I got into the practice that I really began to understand that there’s a whole lot more to it.

Miles Cooper: Well, the addition to that story is I obviously finished mine in a very short timeframe. I went into the adjoining conference room where at that time I worked with for Bill Veen and Bill was about to start the third hour of what ultimately was, I believe, a six hour deposition. And he and a paralegal had put in 40 hours of prep time and managed to find that this particular expert had been a little embellishy on his CV, including graduating from a college that he didn’t graduate from. Which I loved because it taught me that always question your premises, always question what is there because some of these people have gotten away with doing something like that for a very long time. That expert after that deposition didn’t, didn’t work in the field again.

Bryce Gray: I’ve, I’ve never come across a situation where I found that an expert had embellished something as significant as their educational history, which, you know, I mean, that’s sort of the starting point when you’re disclosing an expert or retaining an expert, you look to see, do they have the educational background for their opinions or to serve as an expert. So I’ve never come across that, but I, I’m not going to say always, but very frequently I’ve come across situations where, again, experts haven’t been provided with everything. Oh, how about this deposition? No, I didn’t read it. Were you provided it? No, I didn’t know. Did you know it existed? Did you ask for it? Didn’t know existed and maybe it changes their opinion. Maybe it doesn’t, but they don’t know because I haven’t read it.

Miles Cooper: Yeah, that makes total sense. And with the changes in the law, and I described changes in the law as if they’ve happened recently. Some of them have, some of them haven’t. Things that have changed since I first started practicing were the case that came out that said clarified post depo work. It doesn’t matter which expert goes first, that an expert can indeed do post depo work, can review more stuff. As long as you disclose to the other side that Dr. Schmidt Lapp has done some extra work, he’s reviewed the depositions that we failed to provide him, but he has not changed his opinions in any way, shape, or form. How have you dealt with that scenario in terms of that change in the law?

Bryce Gray: I have come across situations where I’ve been informed by the other side that their opinions haven’t changed. Okay. But I can’t think of any situation where the expert reviewed something new and changed their opinions, which is sort of perhaps not surprising, but at the same time, if it was a key deposition or a key set of medical records, you would think that it would in some way impact their opinions.

Miles Cooper: And that leads me into recent expert deposition. We’ve got a couple of cases heating up for trial. We had a case where the neuropsychologist gave the opinion that there was no concussion in the case. And that was in his report. Also, in his review of the medical records, he noted that there was no loss of consciousness, and that was a significant factor upon which he was basing the idea that there was no concussion, no TBI. And he had missed a notation in the records. I thought he had been cherry picking, but I had the record. And setting this up properly, I asked him, if there was a record that showed that she had lost consciousness, would you be changing your opinion to yes, concussion? And he hemmed and he hawed, but ultimately I got a yes, if there was one that said she had lost consciousness, I would agree that she had a concussion from this. And I was stunned that the defense lawyer hadn’t prepared her for this, because this had come up in our expert’s deposition the night before. But he hadn’t, and popped that up on the screen, and he changed his opinion. Usually it’s a, ah, yes, well, I may not have noted that, but I did see it, and it’s different than what it says in other parts of the records. I find that unusual when they are actually willing to change their opinion.

Bryce Gray: I absolutely agree. And you would think that it would happen more often because, you know, an expert at least held on a pedestal is an expert and you would think that their opinion is their opinion and they’re not going to change or, shall I say, taint their opinion by who’s paying for them. I think we all know some experts are a little further up on that pedestal than others.

Miles Cooper: Yeah.

Bryce Gray: But I think it’s always rewarding to come across a situation where your preparedness and your setting the stage and leading them down the path actually results in what is a win, really.

Miles Cooper: Someone might walk away from that thinking that there was some magic in it. I think it was just an expert who may not have been as tenaciously dyed in the wool. Because the exact same issue in another deposition the next day and boy, did that expert bat that down like nobody’s business. And he was much more trained in defense-oriented, I would say.

Bryce Gray: Some might say prepared, but yes, yes.

Miles Cooper: We talked about where you start with CV and review material. What about experts’ websites? Do you look there?

Bryce Gray: I always do. I always Google them out. I look to see what’s available. And, you know, I’ll start with Google. I think Google usually pulls a lot of things. And, and you can actually get a lot of, you know, if their name comes up with some pacer linked cases you’ll find on various websites, you can find their website if they have one, usually can find publications, anything you can find, and all of that is obviously very important in terms of, of looking at where they’ve been and figuring out how, where they’ve been impacts where they are and perhaps if they’ve changed course or altered opinions or done work on both sides, which many experts do, which frankly I think is a good idea, but how do they weave that path in their opinions?

Miles Cooper: For those who are not as federally focused, can you tell us what PACER is?

Bryce Gray: PACER is, is the federal database of cases and it’s separated into various districts, but you can, if you find a case name or a case number when you’re Googling the experts, you can then go and and do a search, figure out where they are, and pull up the case, and sometimes you’ll find information, testimony that the expert has provided in prior cases.

Miles Cooper: And this is where, even if one doesn’t have a federal practice, learning about rule 26 and rule 26 disclosures, that’s federal rules of civil procedure, 26. Rule 26 is a lawyer’s best friend when it comes to getting information. And and the reason I say that is one, almost all experts at some point do some federal work and as a result, they then have to prepare what is known as a rule 26 disclosure, which they have to list all the cases they’ve been in and I believe it’s over the last five years?

Bryce Gray: I can’t remember if it was the five or 10, but they’re usually pretty detailed.

Miles Cooper: It’s detailed. Anytime they’ve been deposed or anytime they’ve testified at trial, the case name, the case number, the date, and who the lawyer who retained them. And in doing that, you can then also find their rule 26 reports because in federal court, they’re required to do those detailed reports that you were mentioning, which sometimes with certain experts, you can find cut and paste issues, meaning the same expert who says the same thing should resolve in four to six weeks neck back strain. On occasion, not in a federal case, but I’ve seen, uh, a typo where they’ve cut and pasted and they use the wrong name in the report.

Bryce Gray: I have certainly seen that come up. I’ve, I’ve seen it in extra courts on many occasions. You’ve got the, either the wrong pronoun, you’ve got the wrong name, something that clearly demonstrates that the report is a cut and paste.

Miles Cooper: Once you have that rule 26 disclosure, which we ask for as part of our deposition notice, they oftentimes don’t provide it in the moment it is something that we demand that there’s follow up on and question on. Once we get that Rule 26 disclosure, that’s a great resource for getting prior depositions.

Bryce Gray: Absolutely. We can look up the case. We can figure out who counsel is frequently. Counsel will be agreeable to providing a copy of the transcript. I’ve certainly provided lots of transcripts to both sides, frankly, uh, over the years, but you usually can track down at least a couple deposition transcripts and get a sense for how the expert did in deposition, any areas, dissent of who the expert is and, you know, how straight a shooter they are. All sort of information that allows you to then dig in either through the deposition and see what they say.

Miles Cooper: Those are great resources. One of my favorite things to find are depositions when they’ve been on the opposite side of the issue and with certain experts, economists tend to be pretty good about not making this mistake, but sometimes you’ll find an economist who will use a discount rate that is one discount rate when they’re on the defense side, and then a different discount rate when they’re on the plaintiff side, which certainly makes them curious. They have a hard time defending that.

Bryce Gray: Absolutely. That’s a black and white issue and you can’t have it both ways. You know, what is your opinion? Which one should be used? And it really shouldn’t matter which side you’re on. Your opinion should be your opinion.

Miles Cooper: The other thing that – it’s much rarer – however, if you can find trial testimony, and I think back to a case, we had a colleague in the office who was up against a physiatrist named Bradshaw and Bradshaw had been cross-examined by Brian Panish and Brian gutted that expert just in the voir dire-ing after the defense thought they’d qualified the expert, he had gotten three significant issues in terms of misstatements on the CV and in doing it and getting the cross exam, it was just the boiled down version of everything that you needed to be able to take this expert down. And that’s far rarer to come across, but if you can get it, it certainly simplifies the job.

Bryce Gray: Again, I mean, that’s why we do the work. It’s again one of those many things we do as attorneys that 75 times out of 100 there’s not going to be that nugget there, but when you find it, it makes all the work that you’ve done every other time worth it because you know that if you didn’t do that work, you wouldn’t be sitting on it. And I think that you do find things and enough of the time that it makes the hard work that we put in not only worthwhile, but necessary.

Miles Cooper: Let’s say you don’t find that rule 26 or there is no rule 26. Are there resources like Westlaws, Verdicts and Settlements, or ALM’s Verdict Search that you search through to see if you can find a friendly who might be able to give you a past depo.

Bryce Gray: I do. And indeed, you know, whenever I see an expert disclosure, one of the first things I do is I’ll Google them out and see what I find on Google. And then also either do Alexa or Westlaw verdict search and see what they turn up. And you’ll often find with somebody who’s been around the block a number of times, you’ll see a lot of cases. And you will frequently see not only the cases they’ve testified in, but you’ll see the same people opposing them. And both sets of information is very, very valuable because you can not so much go to the expert that frequently poses that person unless you happen to have retained them, which makes it a lot easier, but you can figure out who the attorneys were, counsel or names of cases. And again, it’s an entryway and then you can go, you know, depending, there’s a number of jurisdictions in California, for example, where you can actually go and drill down on their docket and you never know what you’re going to find. Sometimes you’ll find trial testimony, expert disclosures, or if there’s been a motion to strike or a motion in limine, to exclude the testimony of the expert, and then you’ll actually get their testimony from a deposition. That can be very powerful, and if you start seeing a pattern of motions in limine, seeking to exclude experts’ testimony for whichever reason, then you start seeing parallels in what you have in your case, you suddenly, again, have a roadmap for taking the expert part.

Miles Cooper: Which is important and helpful.

Bryce Gray: It is a little bit helpful.

Miles Cooper: We started talking a little bit about CVs and I, I told the story about the expert who had said that he had completed college when he, and to be clear on that, he had gone to the college. He had gotten a lot of credits, he just had never finished. But that misstatement on the CV was all the difference in the world. Do you ever get a sense when you’re working on the background or a particular expert that something is a little hanky and does that prompt you to do more?

Bryce Gray: Yes. As an attorney practicing for a number of years, you start to get a sense when something doesn’t smell right and it’s just a feeling, you know, and I can’t say what it is or where it comes from, but you sort of like, wait a second, this doesn’t make sense. You know, once you get that little hint or that little sniff, then you just dive in and then that’s when you start really going and if you start finding like you find that, wait a second, he didn’t graduate, what else is wrong? Once you’ve got one thing, you know, there’s more and then that’s gives you even more ammunition when you call up an attorney who’s retained, who has cross examined them or been opposite them before. You know, I’ve got this expert on the other side, I’ve started digging, I found this. And then, you know, once you sort of have that in with the attorney, then you start getting even more information and it starts snowballing.

Miles Cooper: And that’s one of the reasons I also like getting a very early deposition from the expert because one of the things I’ve noticed is CV evolution where somebody who, when they were first disclosed as an expert 20 years ago, their first job on their CV was bouncer. As a security consultant, you get that CV over time. They’d make a little tweak here, a little tweak there and 20, 20 years later, their first job is security consultant and you compare the two and you ask them, you know, what changed in the last 20 years where you went from being bouncers to security consultant? Aside from fancy words.

Bryce Gray: Experience creep.

Miles Cooper: Exactly, exactly.

Bryce Gray: A little revisionist history.

Miles Cooper: Yeah. I think it goes without saying, but probably bears some specificity when you’re doing your Google search do you also check other places like social media – Twitter, YouTube. There are lots of people, particularly with expertise who like to get their expertise out there. Do you find things in these areas too?

Bryce Gray: Yes. I do look probably a more of a reflection of of the cases that I’ve handled and been involved with and shall we say the the relative age of the experts on both sides I have not found very much in the social medias. I think think that’ll change as sort of the expert demographic shifts. But you don’t stop, you start with Google, you go to, you know, you just keep digging until you’ve checked everything. And you know, once you’ve checked everything, then you have a good sense. And it’s interesting. Sometimes you don’t find anything and that’s almost as telling that they have nothing out there. You know, where’d this person come from? Are they just starting? Like, who are they? They must have something. They not have a website? Like who is this person? And so, yes.

Miles Cooper: So on the demographic side, you’re telling me that the expert last week who, needed to be taught how to load Zoom onto and the only device he had for a zoom deposition was his phone, that he probably is not on Twitter

Bryce Gray: Probably not.

Miles Cooper: Yeah

Bryce Gray: Probably on Facebook for his kids

Miles Cooper: But probably doesn’t call it Facebook. Might call it Facespace. We’ve talked a lot about all of the kind of background on the expert. What about the report? And I’m making some presumptions. In a lot of cases there’s a doctor who writes the defense medical exam, there’s the economist who writes an economic loss report. Many of the experts that we see write a report and that report shows up in the three day disclosure, and actually that’s probably worth a tangent for a second. The three day disclosure requirement, also relatively new, also not always honored the way it should be. But theoretically, we should get an entire copy of the file that the expert relied on three days beforehand so that we can do our due diligence before the deposition and not show up with piles of files the way it used to be. It makes it a more efficient process.

Bryce Gray: Absolutely. And for everybody. And I mean, it goes both ways. I mean, it’s not, I don’t think it favors one side or the other. And there are times you need to hold the other side’s feet to the fire. And I think that goes, I think it just sort of, if you haven’t seen the report in the file three days before, it’s like, where is this? We need this. I remember the days you’re like, all right, what are your opinions? And the, the expert pulls out a legal pad and it’s got six opinions on there. Okay, what are they? And that sort of harkens back to we were both early in our practice and now it is definitely reports. Then you get all that information. And when you get that disclosure, that’s when you start digging I mean, you should have started digging beforehand, but once you get that you should have all of their prior deposition testimony, the trial testimony. So you have that, and if you haven’t so if you haven’t done that research or found that stuff at that point, that’s when you really start jumping in and you start doing your serious preparation. But in terms of the report: one I look at their opinions, because you know, obviously those are very important, but you usually know what they’re going to say before they say it. I mean, it’s not a surprise. And in most cases, for me, I start looking back again, to the foundation for it and, and that’s, do they have all the records? Do they have the updated records? Do they have the deposition testimony? What is it that they use to rely on it? And are they missing anything?

Miles Cooper: And that’s a good point to talk about the inventory that one does when looking through the expert file. Some of it is the material itself, some of it is the stuff that they’re supposed to provide, but it’s inconvenient or they don’t have the technology. A common thing that we find is everything’s there, but there are no expert notes because the notes are handwritten and the expert can’t figure out how to get them into the computer. Again, a demographic issue frequently.

Bryce Gray: Yup

Miles Cooper: Or they haven’t produced the rule 26 report, even though we’ve asked for it, or there’s no billing file – that’s a common one. And these are not always malicious. There’s sometimes a lot of the defense medical experts seem to be run through third party companies. Meridian is one who does a lot of this and they don’t have the billing file themselves and they’ll say, I didn’t prepare this, the company did it. So if you need the billing, you need it from them.

Bryce Gray: The other one that I would add to that is the emails, you know, the emails back and forth, you know, would, was there a motion for summary judgment? Were there drafts of the declaration, the doctor’s declaration, or, or the expert’s declaration that went back and forth? Were there changes to it? You know, who wrote it? You start seeing, if you get the emails, you can look through. What was the communication and you can usually get a sense for what’s in the communication and then what’s not in the communication because you know, particularly with a seasoned expert, they’re not going to be nothing in the email, but all right, it’s here. It says you guys scheduled an hour call on Tuesday. What’d you talk about?

Miles Cooper: You’re right about the seasoned piece. Most seasoned experts and seasoned counsel at this point don’t send a lot, anything of substance by email. It will be, you know, in close, please find. This or here’s a link to a Dropbox folder with all the stuff but rarely will you see an exchange that has the spoken gun of we’ve retained you to provide this opinion. It does happen on occasion, but rarely. We also always ask about how they communicate with the lawyer because on occasion you’ll find that they text. And those are never produced. And then that becomes its own evolution and people tend to be very casual in their texts and you start seeing long term relationships that are not necessarily helpful to keeping that expert look unbiased.

Bryce Gray: Absolutely. And, and the other thing that I look for, and then you mentioned this as the billing records and getting a sense for how much time the expert actually spent on a file and if, if you as the attorney know that it took you 20 hours to go through a set of records and the expert spent an hour, how much do they glean from those records?

Miles Cooper: Yeah. Within the report and the opinions, do you sometimes use that as a springboard for further research? For example, looking for peer reviewed research that might contradict a position that someone takes or, say, for a road design expert, the Caltrans manual or on the engineering side ANSI standards. What ancillary research does the report opinions cause you to do?

Bryce Gray: Absolutely, you have to dig into everything, right? I mean, you know, if they cite something, we go look at it and did they cite it correctly? And that sort of goes back to, are they quoting the same provision from the Caltrans manual that they’ve been quoting for 20 years? And does it still say that? Oftentimes it will, but maybe it doesn’t. And then you, and that also, once you start digging into that, again, that’s more fertile ground for, are there contradictory or criticisms of the peer reviewed stuff that they’re relying on? And again, that gives you another in.

Miles Cooper: You have done your research, you’ve found the tool that will undo this expert. And this is sometimes a controversial view in terms of when you use it. Do you use it at depo? Do you use it? And save it for trial. Do you sometimes do one, sometimes do others? What’s your thought on that?

Bryce Gray: I think it depends. My personal thoughts on the topic usually are sooner is better. It makes more sense in terms of case handling on a long term and many case basis to share the information and the issues with the other side and, and help them see the issues with their case and the way they evaluated the case because I think that’ll generally, shall we say, aid resolution and then help them get to the point where they’re agreeing with your evaluation. But I can’t think of any specific instances, but I’m sure there are times there are issues, particularly if you know that a case is going to trial, you may want to save it.
You may want to keep it in your back pocket and see the look on their face.

Miles Cooper: I said controversial, however, everything you said resonates with me. I think when you work with some older lawyers, the pre-discovery act lawyers, the bare knuckled lawyers. They’re more likely to want to hold things back. And what I have learned over time is as much fun as it is to spring that bomb in trial, the best thing we can do for a client is get a good settlement. And the way to drive that is to not hold back any cards.

Bryce Gray: I agree a hundred percent. And sometimes picking up the phone and calling the other side and saying, hey, look what I just found on your expert. And do you want him to post? Maybe you should have a little conversation.

Miles Cooper: That’s a great idea. The other piece, and this is the, I’m always cautious about how things are going to go in the live circumstance of trial versus the controlled environment of depo.You may think you have a bomb and those experts, boy, they make good money being able to out maneuver and outsmart us vicious, smart lawyers. And you think you have a bomb. You might want to try it and tamp it down in depo to make sure that it actually resonates, because I’ve seen things that you thought were going to connect and seeing an expert just water off the duck’s back.

Bryce Gray: There are a lot of, shall we say, great experts out there who are very good. And very adept at avoiding seemingly obvious conclusions and very adept at explaining around them or out of them in a manner that a jury will buy into maybe perhaps. And yeah, I think that, that sort of goes into it. I mean, it is a bird, it’s a bird land or two birds in the bush. I don’t know. You know, you have to, that goes into the calculation. You have to think about, is this something the expert’s going to be able to get around? Am I going to be able to box the expert in at trial?

Miles Cooper: I think one other point as we’re talking about preparing for taking an expert deposition is a recognition that good lawyers on the other side are going to be doing the exact same thing that we’re doing and to the extent that we’re hiring a new expert, somebody who we haven’t worked with, somebody who’s not a veteran with lots of cases that we’ve seen, that same level of opposition research is important so that we know what bombs might be out there and, and not use that expert.

Bryce Gray: I would agree. And, and I think that’s a trap that lawyers times find themselves in, because, you know, particularly if it’s an expert they have used, you know, they know maybe they don’t look to see, you know, if something’s come up with the expert and if they’ve had issues. If so, there’s been some issue or something. Lawyers should absolutely do the same level of research and digging on the expert when they’re trying to decide to retain that expert as they do on the other side. Frankly, you should probably do more because you’re the one who’s been paying them and you’re the one who’s making the decision to retain them, so you need to know who they are and where they’ve been.

Miles Cooper: One thing that I haven’t done in the past, but came up in conversation with a colleague of mine was the idea of retaining an investigator to do some of this due diligence on an expert. And while I’ve never done it before, I like it as a concept because we are sometimes time constrained if we’re doing multiple experts in a certain period and an investigator is not. Have you ever come across that as a suggestion or done that in your past?

Bryce Gray: I never have and it’s an interesting thought and frankly it’s never occurred to me to do and it would be interesting to talk to an investigator and see what resources they could tap into to find information, whether it’s various groups on both sides have deposition banks and you know, whether they can gain access to those. They’re usually pretty closely guarded again by both sides and the different organizations, but it would make sense to do, particularly if it’s someone who is a key expert, who you don’t know and who isn’t known to the community. I mean, I think most of the experts that I’ve come across or come across generally are known in some capacities. They’ve been used by somebody in the greater community and get a sense for who they are. And so does that mean that you shouldn’t have an investigator investigate them? No, it doesn’t. But I can’t say it’s ever really occurred to me.

Miles Cooper: Your comment about deposition databases. There are a couple of other sources that people should consider looking at. One is plaintiffs only listservs, and I presume there are defense only listservs as well, where the names come up on a regular basis and you can do a search to see people who’ve talked about them or people who’ve been in trial with them and whether their deposition’s in there. The other is not to forget one’s own firm. And depending on the size of the firm, if it’s just you, it’s probably not as big a deal, although if you’ve been in practice for a while, running that name through your database just to remind you that, oh yes, 20 years ago, you did actually face this person before. I actually recall, though, a trial we were in where part of the cross examination of a defense expert was “And you’ve never been retained by our firm…” and the response was, “Well, actually, yes, I have. Mr. Smith in your office just retained me two weeks ago”. Which didn’t go over as well as we would have liked. So making sure you communicate with people within the office about not being on the other side of this person, or if they are up against them so you can not just duplicate research.

Bryce Gray: Yeah, absolutely. And different firms are, there’s certainly bigger firms that have been around for longer that do have their own bank of depositions. I think, you know, as again, we sort of move forward with technology when we’re no longer got 50 bankers boxes of, of deposition transcripts, it can just be on a, you know, on a hard drive sitting somewhere on a server in the cloud or wherever. But I think that you’re going to see more of that because I think it’s, it’s very easy to copy over transcripts and hang on to them. And you should, I mean, I think all experts, you know, I think every firm should, should have a bank of the expert depositions. And then to speak to the other point, if an expert’s currently working for your firm, you going after them. You need to tread lightly. You need to know that going into it, you know, particularly if it’s somebody who’s local in the community and you’ve retained them 15 times and the other firm has retained them 15 times, that’s something you should be well aware of and make sure that you don’t step into a minefield.

Miles Cooper: That is a very good point. And with some of these experts, the ones who are very competent, but straight shooter-ish, that happens, that they’re retained by both sides.

Bryce Gray: Absolutely. And one would think that. And experts are going to have their opinion irrespective of which side hires them. And we know that is frequently not the case. I’m not going to say always not the case, but often it’s not the case. But you know, the best experts are going to probably work for both sides and you should know that. And that is maybe the expert that you want. And you just have to know where your tax going.

Miles Cooper: I want to go back to your banker’s box comment because I think that one should not underestimate the value of a banker’s box with a expert who has testified hundreds of times and you want them to know that you’ve got the goods on them. Showing up with a banker’s box that says Gudinski on the side, if for example, your expert is named Gudinski.

Bryce Gray: Yeah.

Miles Cooper: Setting it up on the council table as you’re starting your cross and letting the expert know that you have a good 25, 30 depositions sitting there. And when you start asking the questions of, have you ever testified to X or testified to Y? They usually will say, I may have.

Bryce Gray: I may have, I’m not sure. I don’t, I don’t remember. I may have. And then yeah. You know, on the one hand, you can’t expect everybody to remember everything they’ve done, but they are an expert witness who’s getting paid a lot of money for their opinions.

Miles Cooper: And they should be consistent. And that’s where you sometimes find that they have been inconsistent, and they don’t even have the ability to be able to say whether they have been or haven’t been, because they’ve been in the game so long.

Bryce Gray: Right?

Miles Cooper: As I kind of mentally go through my checklist, one item we haven’t covered is the idea of being a member of an organization and those organizations having bylaws, and that’s one area where sometimes you can find traps for the unwary where a person is testifying in a certain way. Either they don’t have access to the records or they haven’t had a chance to do an exam of the person and that violates the bylaws of, uh, a medical group that they are a part of, or some other thing. And so as you go through the CV, checking to see what organizations they’re a part of and seeing if there’s any sort of rules or regulations related to testifying that they may not even be aware of.

Bryce Gray: I’ve seen that issue and I’ve never had much success with those lines of questioning, but I think it’s, again, it goes back to your preparation, it’s making sure you go through everything and do they have, you know, bylaws and, you know, does it violate it? And I’m just speaking from my own personal experience. I’ve never had a whole lot of success, even if they are fighting bylaws and the expert is sort of, they shrug it off. But it’s one more piece and that may be the piece that gets you over, or they’ll, you know, last brick in the wall.

Miles Cooper: So as we’re coming into the tail end of things, any other nuggets, tidbits, things that you think would be helpful for somebody who’s making sure that they are fully prepared for doing the best job possible at an expert deposition.

Bryce Gray: Yeah. I think that, you know, whatever it is that the expert is opining about as an attorney, I think you have to have a deep understanding of what it is. Your job is to be, you know, a mini expert; work with your own expert to learn what it is that they’re an expert. You know, if it’s a medical condition or you know, whatever, you know, bike mechanical issue or you know, whatever it is, you’re not gonna know it as well as the expert because you’re not an expert. But you can get pretty close. And with that information as you’re questioning the expert, either one when you’re looking at the file, and two, when you’re questioning the expert, that’s when you can sort of get a sense of, wait a second. What they’re saying doesn’t make sense. Again, that’s where, you know, on the fly, you get a sense of this person not making it up, but you know, this is where they’ve crossed the line.

Miles Cooper: And you raise a good point, almost like the elephant in the room, speaking to your expert, asking the expert, what questions do you want answered to make sure that your own expert has all the information they need from that deposition in order to be prepared for trial and understanding what the other side’s opinions are.

Bryce Gray: Absolutely. And it is the elephant in the room in the sense that we haven’t spoken about it, but your own expert is the best person to provide information to you to pick apart their opinions. They’re going to know where the skeletons are and they may know the expert and they’re going to go through the report and like, these are the issues, this is where you need to poke. You don’t want your expert to send you a list of questions.

Miles Cooper: This is a conversation you have on the phone.

Bryce Gray: Yes, yes. But it is a conversation you have on the phone and you should be talking to your experts before you take that expert because they’re the expert, again, gets back to doing the work, digging, following your sense. I mean, that’s what we do as lawyers. We do the work and we follow our sense and see where it leads us.

Miles Cooper: The nose knows.

Bryce Gray: The nose knows.

Miles Cooper: Well, thank you, Bryce.

Bryce Gray: Thank you as well.

Miles Cooper: And thanks to you for listening today. Please email us at podcast at coopers.law with questions, comments, feedback, and your own suggestions on how you best prepare for expert depositions.

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