Almost everything I wrote about fact witness depositions applies to expert witness depositions, with a few exceptions that I will discuss here.
LIMITATIONS ON NUMBER & DURATION
The limitations discussed above, which apply to fact witnesses, as to the number of depositions that may be taken or their duration do not apply to expert witnesses. If your opponent discloses an expert witness, then you have the right to depose that expert; however, there may be good reasons to decline to do so.
EXPENSE
Expert witnesses are expensive. They are generally highly credentialed individuals, and they do not work as free volunteers. They charge for their time, and they usually charge as much as the market will bear. If the individual is in high demand, then you will usually see that reflected in the individual's hourly rate. As described above, you have to pay your own experts to formulate their expert opinions. But if you want to depose your opponent's expert, then you will have to pay your deponent's expert for the time he or she spends in the deposition. However, you do not have to pay the opposing side's expert for any time he or she spends preparing for the deposition. The opposing side will have to pay for that.
The reverse is also true. If your opponent wants to depose your expert, your opponent will have to compensate your expert for the time he or she spends in the deposition. But if you want to spend time with your expert to prepare him or her to be deposed, then you will have to pay your own expert for that time spent in preparation.
TO DEPOSE, OR NOT TO DEPOSE, THAT IS THE QUESTION.
Most of the time I choose not to depose my opponent's expert witnesses before trial. There are several reasons for this. First, I do not want to give the opposing expert the benefit of a dress rehearsal. Second, I do not want to show my cards to my opposing counsel before trial. Third, it is much easier for opposing experts to get away with evasive answers at deposition than it is at trial. I prefer to examine experts when the full power of the judge is immediately at hand. Fourth, as mentioned above, it can be very expensive.
I would say that defendants are generally more likely to depose the plaintiff's experts than vice versa. I think there are basically two reasons for this. First, defendants have much more upside when they depose the plaintiff's experts because the plaintiff has the burden of proof. Therefore if the defendant can strike a knockout blow against the plaintiff's expert, the plaintiff's entire case could fail as a matter of law. That upside does not usually exist for plaintiffs. Even if the plaintiff's lawyer metaphorically eviscerates the opposing expert, the plaintiff will still have to go to trial and carry its burden of proof. Second, the defendant's entire case is usually funded by an insurance company or other massive corporation with virtually unlimited resources at its disposal. Therefore, the cost of deposing the plaintiff's experts is just not a significant consideration for most defendants.
The philosophies, strategies, and tactics I've outlined above are the principles that guide our actions at Cluff Injury Lawyers. I've outlined them pedagogically to help anyone who wants to better understand these principles or improve their skills in utilizing them.
Author: Brigham Cluff