The Washington Association for Justice, which is the oldest and largest civil justice advocacy organization in the Pacific Northwest, has published an article from Ed Budge in the February, 2019 edition of the Trial News.
Ed’s article, which relates to certain aspects of litigation strategy, is re-printed below:
In state court cases, it often makes a lot of sense to depose defense experts. After all, the pretrial disclosure requirements are limited. Usually, in state court, the only required disclosure is the defense expert’s name, a brief description of his or her general qualifications, and a summary about his or her anticipated testimony. If we want to know more (and we almost always do), we usually need to depose that person.
In federal court cases, plaintiffs’ attorneys will often feel a reflexive need to depose defense experts. After all, our opponents will almost always be deposing our experts, so shouldn’t we do the same? But before you automatically note up that defense expert deposition in a federal court case, stop and think about whether it is really necessary – or even desirable – to do so. My practice focuses almost exclusively on section 1983 cases arising from wrongful death and serious injuries caused by police and jail or prison personnel. As a result, my cases are almost always filed and litigated in federal court. I litigate these cases aggressively. I conduct exceedingly thorough discovery. I invest hundreds of hours of time and many thousands of dollars. My opposing counsel quickly realize that there are few, if any, stones that I will leave unturned. But I often decide not to depose defense experts. Why? There are many reasons – some practical and some strategic – to forego expert depositions in federal court cases.
First, in federal court, the disclosure requirements are far more comprehensive than in state court. Under Fed. R. Civ. P. 26, any retained defense expert must provide a report containing a “complete statement” of all opinions and the “basis and reasons for them;” a list of all facts and data considered by the witness; a list of any exhibits that will be used to summarize or support the opinions; the expert’s qualifications (usually a long CV); a list of all publications authored by that expert in the previous 10 years; a list of all other cases in which he or she has given testimony at trial or by deposition in the past four years; and a statement of the compensation being paid. In other words, when I get the defense expert disclosures, I know almost exactly what the defense experts are going to be saying and why they are going to be saying it. In federal court, judges are generally quite strict about limiting experts to their reports at trial. If a defense expert strays outside the confines of his or her report, the judge will usually put a stop to it.
The defense report itself gives me a trove of information. Not only does it tell me what the expert considered, it tells me what the expert did not consider. Not only does it tell me what the expert’s opinions are, it tells me what the expert’s opinions are not. Generally speaking, a thorough expert report will pretty much tell me most of what I need to know about what the expert is saying and why he or she is purporting to say it. If the report is not thorough, that is going to be a problem for the defense in a pretrial motion or a problem for the defense expert at trial.
The report will almost always be accompanied by a long list of the expert’s publications. This gives me the ability to scour his or her writings for useful information. The list of previous expert testimony is a starting point for gaining access to transcripts that I might also review for useful prior statements by the expert.
Databases like those available through WSAJ and TrialSmith, as well as good-old-fashioned phone calls to lawyers who’ve previously been up against the expert, give me access to transcripts and reports in other cases that could go back well beyond four years. If the expert testifies regularly, I might have hundreds of pages of testimony from that expert in similar cases to work with. This information, combined with the expert’s writings, writings by other experts, and the four corners of the report itself, will usually allow me to put together a surprisingly effective cross-examination. The great benefit of preparing a cross-examination this way is that the expert will have no idea from which direction I am coming when he or she is on the stand. A stack of depositions on my counsel table from other cases the expert has testified in can be a very intimidating thing. Every expert will be prepared to deal with his or her own deposition transcript from the same case he or she is testifying in. But almost no expert will be prepared to deal with a deposition transcript from a barely-remembered case from several years ago. If I have that ammunition, I do not want the expert to know before he or she is confronted with it on the stand.
There are some downsides to deposing an expert in a federal court case. For one thing, a deposition forces the expert to “get ready.” It permits the expert to see me, size me up, and get an idea of where I am coming from. And it forces the expert and defense counsel to work together – not once for trial, but at least twice. In many instances, a defense attorney and his or her expert will never have met each other face to face before the report is written. If I decide to depose the expert, the expert and the defense attorney will undoubtedly get together, shake hands, share coffee, and discuss strategy. I know firsthand that my experts sometimes benefit from having their depositions taken, because it forces their preparation. The preparation that my experts and I do to get ready for a deposition carries over to trial. Why would I want to give the defense the same advantage?
In federal court, there are limitations about what I can ask in a deposition and the information I can get even if I do decide to take an expert deposition. Relatively recent amendments to the federal rules make draft reports and almost all communications between a defense expert and the defense attorney undiscoverable. Juicy information like emails between the lawyer and expert and marked-up draft reports are almost never discoverable via a deposition subpoena duces tecum.
There are other downsides to taking expert depositions in federal court. If I make headway in the deposition and elicit testimony helpful to my case, the expert may find ways to deal with that testimony at trial. At a minimum, he or she will be prepared to address the testimony before a jury – explaining it away through a carefully-constructed rationale put together between the time of my deposition and the time of trial testimony. The defense attorney may bring up the points in direct and thereby take the wind out of my sails before I get to cross. If I make excellent points in the deposition, the defense lawyer may simply decide to withdraw the expert entirely and rely on another expert designated on the same or similar topic. In other words, for me, a great deposition does not necessarily confer great benefits to me at trial.
Keep in mind that the federal rules require very thorough reports and that federal judges are generally inclined to keep experts within the scope of their reports. If the expert strays beyond the scope of the report in direct (or in support of a summary judgment motion), my argument for limiting his or her testimony is diminished if the defense lawyer has the ability to say, “But the plaintiff’s attorney deposed him/her! It’s not in the report, but the subject was covered in the deposition, so there is no surprise!” There is little comeback to such an argument if I’ve deposed the expert and he or she has testified on a topic arguably outside the scope of the report but learned by me in the deposition.
Interestingly, I find that defense lawyers will sometimes practically beg me to depose their experts. When they are internally committed to settling the case anyway, they feel like “showing off” their experts will convince me to devalue my case. When I am asked, “When do you want to depose my expert?” and my answer is “it’s not necessary,” this can throw the decision-makers on the other side for a bit of a loop. They know that my decision is a strategic one and not borne of a simple desire to save time and expense, and they may (correctly or incorrectly) conclude that I “have something” on the expert that makes his or her deposition unnecessary. In other words, the defense can be left feeling as if their expert may be vulnerable or, at a minimum, that he or she has been “wasted” if they haven’t been able to show the expert off to me in a deposition.
In the old days, and even now in some jurisdictions where expert discovery is extremely limited, experts were effectively dealt with at trial without having been deposed. Today, we plaintiffs’ lawyers see defense lawyers deposing our experts (often ineffectively) as a matter of routine. It can be hard to resist the temptation to respond in kind. But there is nothing wrong with calculated decisions not to depose defense experts – especially in
federal court cases. More and more in my federal cases, I am finding that declining to depose a defense expert is the better move.
Ed Budge, EAGLE, is a member of Budge & Heipt, PLLC—a law firm focused on civil rights cases involving jail and prison deaths and wrongful death by police. Visit www.budgeandheipt.com for a description of the firm’s focus on excessive force cases and cases involving injury or death in jail or prison.