Winning Your Complex Case at Deposition

By: IRA H. LEESFIELD
Leesfield & Partners
2350 South Dixie Highway
Miami, Florida 33133
(305) 854-4900

I. Do Your Homework - Gather As Much Information On Defendants, Defendant's Product and Defendant's Expert As PossibleA. Prior Case Law on Your Product

1. Use Westlaw/Lexis, search for product name, cases involving similar products

2. Locate/contact lawyers who have had cases involving similar products

B. Applicable Safety Standards

1. industry standards

2. federal standards

3. do not overlook engineering patent information

C. Research the Product

1. company catalogs

2. who owns the trademark

D. "Shepardizing" the Expert

1. has the expert published

2. how has the expert been treated in the literature?

3. what does the expert consider to be an authoritative source?

4. general databases: Westlaw/Lexis; has the expert's name appeared in a reported opinion?

5. full text searching - non-legal databases, magazines, trade and industry journals

E. Information on a Company

1. financial information: Dun and Bradstreet, TRW Credit reports, documents filed with the SEC

2. company press releases

3. Congressional testimony

4. forum selection: where is the company doing business: electronic yellow pages

II. Develop Jury's Consciousness of Defendant's Indifference/Greed

A. Consumer must be protected against any defective product placed in the stream of commerce due to carelessness/greed of manufacturers

B. Safety should be Number 1 consideration

C. Consumer Product Safety Commission: bans/recalls, standards for protection of consumers

D. Manufacturer's responsibility to market safe products should not depend on whether or not a person escapes injury

E. Be aware of how corporate representative or expert can be used to bring these themes to the jury

III. Examining Defendant's Expert and Corporate RepresentativeA. Background

1. expert interrogatories including questions concerning amount of money charged by expert for participation in case;

2. require specific answers to interrogatories prior to deposition;

3. position of defense expert - exploring fully the following: previous experience with court system/testifying/advertising services;

4. receive previous transcripts of testimony, articles written, copies of all treatises witness may agree are authoritative.

B. Deposition

1. videotape it

2. insist witness read and sign deposition after transcription;

3. questions re: experience and training and frequence in dealing with specific matter on which your case is based;

4. insist witness reveal research materials on which he bases his opinions - then secure them;

5. ascertain what materials/information have been supplied by defense counsel prior to deposition, including other depositions;

6. establish length of time expert has spent preparing for deposition;

7. establish what factors, if any, would alter witness opinion. Note: the manner in which you handle a key deposition of a tough witness can do more than discover facts. It sets the tone. It reveals to other side your preparedness, skill and determination. It establishes the "rules" - the parameters for this piece of litigation. It is just a small puzzle piece in what others recognize as your reputation. Handling the unyielding deponent properly can turn a potentially futile deposition into a successful session, one more step in the direction of a good result by way of settlement or trial.

C. Trial: Evaluate which of the following points you can establish on Cross-Examination

1. the witness is committed to a position that is contrary to common sense;

2. the witness is biased against the plaintiff;

3. the expert is biased toward the defendant;

4. the witness has an insufficient amount of information on which to base his opinion;

5. the witness is testifying in a manner contrary to that of his deposition/report;

6. the witness is intellectually dishonest, i.e., arbitrary, pompous, unyielding on the points on which he should yield;

7. the witness is not knowledgeable.

D. Style of Cross Examination

1. "Please answer YES or NO, then you are free to explain your reasons for your answer."

2. Stay on your territory (points you want to make) and away from his.

3. if you can make one point on cross-examination do it and stop.

4. do not be tempted to exhibit your expertise in his field. The jury will be bored before it is improved.

5. know the facts/records/any testing results/reports better than anyone else in the courtroom.

6. be respectful, until the witness shows that he is not entitled to respect, then be aggressive.

7. never let the witness teach the jury

8. If he is terrific, unimpeachable, loveable, etc., just establish that he is paid by the defense and leave him alone.

IV. Practice Pointers

A. Remove Credibility Issues: At the end of trial your side should appear more credible.

B. Avoid overkill on cross: proper cross-examination permits the witness to destroy himself; keep short and to the point

C. Do not be afraid to use hypothetical questions. They are an opportunity to present a summary of the evidence, from your point of view, in the middele of trial. Do not read your hypothetical questions. This will only impress the jury with your lack of knowledge and belief in your case.

D. Watch out for defendant's expert at counsel table. The defendant may try to circumvent sequestration rule by naming one of its experts as a corporate representative for purposes of trial.

E. Do not forget the importance of rebuttal witness. This may be a deciding factor in the minds of the jury; or your cross examination may have already won the case; be sure you know which is true.

V. Specific Areas of Questioning You Must Never Overlook:

A. Obtain a very detailed account of all opinions and the basis for such opinions. Inquire as to all assumptions, opinions, information and other evidence relied upon in formulating his opinion. Do not accept a vague or equivocating response.

B. If the expert says he wants or needs to do additional work find out whether or not it is recommended in his own personal opinion that any further work be done to develop his opinion and commit the other side to another deposition.

C. Ask questions to attempt to create a doubt in the expert's mind as to the accuracy of his opinion.

D. Make certain you know all the facts from your case which are relevant to his opinions and the source of his knowledge about these facts. Make certain you understand why he feels the facts are important to his opinions.

E. Reduce the expert's language to words and phrases which can be readily understood.

F. Ask the expert for all his notes and records in connection with this case. Look at his copies of any depositions he has read. Analyze these notes for inconsistencies. Mark and attach the notes and records.

G. Question the expert about the financial arrangement for this case and all cases for the defendant and defense attorney.

H. Determine the number of times he has testified for the other side, ask for the defense attorney, for the defendant. Ask about advertisements in publications for his services and how many speeches he has given and to what types of organizations.

I. How many times has he consulted with defense counsel and other defense experts about the case. How much time, total, has he spent on the case. Break it down into time increments.

J. Go through his curriculum vitae or, if none, the witness' work experience and education particularly concentrating on his credentials to testify in your case and about the product involved in your case.

K. What is the expert's experience with designing, building and manufacturing the specific product. Is he a specialist or a generalist? Has he ever designed any product which was actually built?

L. Go over all the exhibits and tests prepared or to be used by the expert. Find out how he planned or participated in any tests done. It is very important that you prepare thoroughly your questions about any tests performed. Ask who was present. If the tests were filmed or photographed.

M. Discuss key interrogatory answers and materials produced by the defendant.

N. Has the expert received everything he requested? If not, why? Has he been to the scene? What did he learn there? What was he looking for? Has he examined the product? What exam did he perform? What information did he learn?

O. Has he done reports? Oral? Written? When? Who has the copies? What did he say?

P. Does he have files about the product? If so, explore thoroughly. Did he try to get information about the product? What did he do and get?

Q. Who assisted the expert and what assistance did he receive?

R. When did he form his opinions? Has he changed opnions? What material did he have when he formed his opinions?

S. What other cases has he testified in? Go through litigation experience thoroughly.

T. Has he ever testified that a product was defective and unreasonably dangerous? What? Where?

U. Cover principals of safety engineering - does he accept human factors engineering?

V. Can you get him to agree with any of your expert's opinions? Explore if he has read your expert's testimony and what criticism he has.

W. Is he planning on testifying at trial? Has he prepared a list of questions to be asked? What are they? What subject will he testify about?

X. Did he assist the defense attorney in preparing for the other expert's depositions? How?

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