Discovering Expert Opinions Using Interrogatories and Depositions
DISCLOSURE OF EXPERT OPINIONS
A. Designating Experts
Either in responding to formal discovery or in complying with pre-trial orders, a party must generally designate all expert witnesses within a reasonable time prior to the trial itself. In so doing, the attorney must be careful to designate all persons who could potentially be called as expert witnesses to preserve the ability to present the most beneficial testimony at trial. In fact, even where certain lay witnesses may offer testimony bordering on expert opinion, it would be wise to designate these persons as expert witnesses to the extent that any aspect of their testimony would be regarded as expert opinion.
To preserve the right to call expert witnesses, parties must be careful to adhere strictly to the rules and orders of court. Without designating experts sufficiently in advance of trial, and properly disclosing the nature of expected testimony, a party may be precluded from calling these persons to the witness stand. Thus, one must pay close attention to federal and state provisions regarding the discovery of expert testimony.
B. Disclosure of Expert Opinions
1. Federal Requirements
Under the Federal Rules of Civil Procedure, the availability of discovery tools to obtain expert opinions and to determine the bases for such opinions depends on the type of expert for whom discovery is sought. There are basically two types of experts: (1) Non-Testimonial Experts, who have merely been consulted to provide assistance in litigation analysis or strategy; and (2) Testimonial Experts, who are expected to be called at trial.
Non-testimonial experts are a part of the internal trial strategy and analysis of the case, and their opinions and information are protected from discovery in a manner quite similar to attorney work product. Since there is no need to prepare for cross-examination in the case of those experts who will not even appear at trial, there is truly no need for discovery. Thus, according to the Federal Rules of Civil Procedure, one may only "discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only ... on showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means." Fed. R. Civ. P. 26(b)(4)(D) (emphasis added).
In the case of testimonial experts, the need to prepare for cross-examination is sufficiently great that the Federal Rules require that many aspects of anticipated testimony be disclosed even without a specific discovery request. If the expert was retained to testify in the case, or is an employee of the party whose duties regularly involve giving expert testimony, Federal Rule 26(a)(2)()B) requires the expert to prepare and sign a written report which contains:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
Other experts, like treating doctors for example, are not required to provide such formal reports, but parties offering such testimony must still disclose the subject matter of expected testimony and a summary of the facts and opinions to which the witness is expected to testify. Fed. R. Evid. 26(a)(2)(C).
While these forms of disclosure are mandatory, courts have, in actual practice, varied on the comprehensiveness of the required report or disclosure. But those who fall short may finds obstacles to the admissibility of expert testimony.
2. Maryland Requirements
While the Maryland Rules do not contain the mandatory disclosure requirements of the Federal Rules, the other discovery tools provided are virtually identical. Like the Federal Rules, Maryland distinguishes between testimonial and non-testimonial experts, providing liberal discovery for the former and virtually none for the latter. Maryland treats non-testimony expert information like it would any other form of work product and requires parties to demonstrate a "substantial need" for such information and show that they would experience "undue hardship to obtain the substantial equivalent of the materials by other means." See Maryland Rule 2-402(d), 2-402(g)(2).
For testimonial experts, the Maryland Rules permit parties to obtain the substance of expected testimony in the form of interrogatories, a request for any written reports and depositions. The interrogatories may require the opposing party to identify experts who will be called to testify, the subject matter and substance of such testimony, a summary of the grounds for each opinion; and to produce any written report made by the expert concerning those findings and opinions. Such requests may also seek a summary of the qualifications of each expert, any available list of publications written by the expert, and the terms of the expert's compensation. Maryland Rule 2-402(g)(1).
3. Strategies for Maximum Flexibility
When designating experts or disclosing the substance of their opinions and expected testimony, it is important to comply fully with the rules of discovery. It is equally important to respond in such a manner as to ensure maximum flexibility for future trial strategy. Thus, when designating experts, designate all persons who could possibly be called as witnesses at trial. In this way, you will preserve the option to call various individuals as expert witnesses thereafter. When disclosing their areas of expertise, define the areas of expertise broadly so that you will not encounter undue difficulty if the court questions the legitimacy of a specifically-defined field. Finally, make certain that you disclose the expert's opinions and other information in such a manner as to afford the expert sufficient flexibility on the witness stand. Since anything an expert says in a report may be used against her in court, carefully screen all disclosures to avoid areas of potential impeachment. Despite the Federal Rules' stringent pre-trial disclosure provisions, err on the side of greater generality in expert disclosures while providing sufficient detail to allow for all desired testimony at trial.
C. Drafting Effective Interrogatories
When drafting interrogatories seeking the discovery of expert information, one should make every effort to avoid unnecessary discovery issues by using interrogatories which mirror (and even cite) the language of the federal or state procedural rules. The following is an example of such an Interrogatory:
Pursuant to Maryland Rule 2-402, identify all experts whom you propose to call as witnesses at the trial of this case, stating, without limitation, the subject matter on which each expert is expected to testify, the substance of the findings and opinions of each expert and a summary of the grounds for each opinion, a summary of each expert's qualifications, the terms of each expert's compensation, produce a list of publications written by each expert, and produce any written report made by each expert concerning these findings and opinions.
By tracking the actual language of the rule, and citing to the rule itself, opposing counsel would be hard-pressed to object to this Interrogatory.
D. Deposition Strategy
By far, the most important phase of expert discovery occurs at the expert's deposition. To conduct an effective deposition, you must properly prepare for the examination by reviewing thoroughly all relevant documentation and studying the subject matter to ensure that you are sufficiently conversant with the technical aspects of the case to scrutinize the expert's testimony and respond with effective follow-up questions. If you have retained an expert of your own, review your strategy with that expert and ask that individual to provide additional questions. Not only will this provide effective questions designed to probe the bases for the opposing expert's testimony, it will enable your own expert to obtain important information which may be very helpful to his own opinions. If possible, make every effort to conduct the deposition of the opposing expert first and, if monetary considerations permit, have your own expert present at the deposition to provide helpful technical assistance.
While the substance of each deposition may differ, an effective discovery deposition should involve examinations on the following issues:
1. The expert's education, experience and qualifications. Although it may not be fruitful to highlight these at trial, the discovery deposition is your opportunity to probe the opposing expert's background without any risk that such a pursuit will impress the jury. In so doing, you may find certain experiences lacking, or, that your own expert has earned certain accolades which the deponent has yet to reach. Furthermore, while the deponent may have considerable expertise in the field generally, she may lack certain experiences specifically relevant to your case. The only way to determine this is to pursue the issue in deposition.
2. Ask the expert the nature and scope of his assignment. What was the expert retained for? Did opposing counsel retain the expert under circumstances which strongly suggested the nature of the desired opinions?
3. Determine the bases for the expert's opinions by inquiring into the precise materials which the expert has reviewed and into all other information sources. Prior to the deposition, you should subpoena all documents which the expert has reviewed or which form the bases for his opinions. At the deposition, you should not only question the expert on the effect of these materials, you should also determine what materials, information, or investigation the expert has not pursued.
4. Ask the expert whether he or she needs or has requested any additional information to render or to finalize the opinions. If the expert replies in the affirmative, you must reserve the right to re-depose the expert on any additional findings and opinions and you should insist that opposing counsel provide a supplemental expert report promptly.
5. Ask the expert what opinions he or she expects to provide on the witness stand. Make certain that you inquire into every possible opinion, its bases and rationale so that you leave little, if any, room for surprise at trial.
6. By probing the bases for the deponent's opinions, determine the limitations of these opinions. Would the expert render the same opinions under slightly different versions of the facts? If so, what factual assumptions must change for the deponent to render an opinion favorable to your client? Many experts have taken the witness stand for one side and unwittingly scored points for the other by making factual assumptions which the other side ultimately disproved.
7. Determine the expert's response to opposing theories and opinions. While you do not necessarily wish to prepare the deponent for your own expert's testimony, in most cases, he will go to trial after reviewing a transcript of his opponent's deposition. Thus, it makes sense to determine your opponent's strategy in attacking your own expert. While you should exercise care not to make important nuances of expert strategy too obvious, this will enable you to better prepare your own expert for trial.
8. Pursue impeachment issues. How much has the expert been paid to render his opinions in this case? What is the basis of compensation? Does the expert have a lengthy relationship with opposing counsel or the opposing party? How many times has the expert testified in court? Does she derive a substantial portion of her income from such testimony? Particularly in the medical field, there are several experts who derive a substantial amount of their income from "litigation support services" -- in many cases, through close association with the attorneys calling them. Do not forgo this opportunity to obtain effective impeachment material for trial.
The manner in which you pursue these issues will vary with your objectives for the deposition. In most cases, the goal of an expert's deposition is twofold: First, the deposition will enable you to learn the substance and underlying rationale of the deponent's testimony. Second, if the right issues are fully pursued, the deposition will "lock the expert into place," making it difficult or impossible for the witness to squirm out of a position on the witness stand without paying the penalty of impeachment for prior inconsistent statements.
When questioning the expert, you should insist that the deponent define even the seemingly most obvious of terms. Because expert witnesses frequently try to elude their attackers by resorting to semantic and definitional debates, your deposition should eliminate such debates by defining the expert's own terminology. Then, at the later trial, you should use the expert's own language on cross-examination. This will help to avoid the expert's petty quarrels with the specific language you used in questioning him.
Unless your objective at the deposition is to brow-beat the expert into submission and gain important leverage for settlement, you should conduct the deposition with great "deference" to the witness' expertise. If the expert feels that you have truly mastered the nuances of the case and have become fully conversant and comfortable with the intricate subject matter at hand, she will probably appear at trial exceedingly well-prepared for a hard-hitting cross-examination. Remember, playing "dumb" at deposition may allow you to look much smarter where it truly counts -- the trial.