The Use of Expert Witnesses During Discovery

By Jacqueline S. Vinaccia

I have a dual perspective of litigation from the vantage point of a trial lawyer and an expert witness. This often makes it a difficult to resist objecting to questions I am being asked while I am being deposed. And honestly, if you read one of my deposition transcripts, you can see that I do object backhandedly.

This dual perspective has been invaluable in my own legal practice, and it has given me some anxiety in my expert practice. Expert witnesses are largely observers in litigation until their own depositions and/or trial testimony. This is an underuse of the expertise of your witness. Use of your expert during the discovery phase of litigation can greatly assist in getting to the heart of your matter and saving your client expensive attorney fees incurred in getting the attorney up to speed in a new field. I recommend identifying necessary experts early and making them part of your discovery plan.

Keep in regular contact with your expert during the discovery and motion phase of the case. Facts are clarified and legal theories often change during the discovery and motion phase of a case. These changes often affect the expert’s role or approach to the analysis. Your expert knows what facts she needs to render the best opinion for your position in the case. Contacting your expert prior to drafting written discovery or deposing key witnesses can lead to the discovery of invaluable information.

There have been several occasions when I wished counsel had spoken to me before they deposed the main attorney billing on invoices that I am auditing. This would have helped me understand why so much time was need on certain memos or motions, and helped me frame questions or obtain information that will allow me to better hone my opinions.

Counsel can discover entirely unappreciated issues in the case after just a few short discussions with the expert. For example, I’ve had experts tell me that my own theory of the case would not hold water, but that another approach would destroy the other side’s case. Had I not spoken to my expert about my lay theory, I would have followed a poor path and had to revise by litigation plan without proper discovery.

Also, the argument on summary judgment or summary adjudication can change the approach of the expert and counsel. Experts who are knowledgeable about the case are more useful for developing declarations in support of motions than those brought up to speed on a moment’s notice. Experts can assist counsel in determining whether the opinion the expert will eventually render will be helpful to the case and if other fields of expertise are needed.

During the expert discovery phase, your expert can help or entirely develop the questioning of the opposing expert in the same field. Experts can assist in developing questions for experts in their own and in other fields. Expert can develop questioning designed to obtain information the expert needs to rebut the opposing expert’s opinions. Also, experts rely upon information from others to form opinions. Quiz your expert regarding the information necessary to render the opinion most helpful to your case. Then you can obtain the necessary basis for the opinion from all sources.

Conduct a pre-deposition meeting, regardless of the number of times an expert has been deposed. The meeting can be conducted by phone with a seasoned expert. If the expert and counsel have never worked together, or if the expert does not have much litigation experience, an in-person meeting should be conducted.

Being on the witness’ side of the table is not something all attorneys get to experience. It is a daunting task to have your opinion challenged by seasoned counsel. Even the best experts in their field can be intimidated or confused by the barrage of questions on minute points of an expert report taken out of context.

The pre-deposition meeting provides counsel the opportunity to go over the material reviewed by the expert, determine if there is any information missing and review the opinions and their bases. Counsel should tell the expert what she believes are the most important facts of the case and why they are important. The expert can also identify those facts in the case important to the expert’s analysis and refocus counsel if necessary.

As an expert, I am very interested in knowing the personalities of the people in the room and if there is any animosity between counsel so that I can be prepared for the tension and deal with it appropriately. Also, the importance of issues can twist and turn during litigation. A pre-deposition meeting gives me, as the expert, the most up to date information regarding the status of trajectory of the case.

Bottom line: experts can focus discovery and save clients thousands in attorneys fees and costs. In my experience, clients who observe efficiency and an eye on the attorney fee invoices are repeat clients because counsel has earned trust.

Jacqueline S. Vinaccia is a litigation and trial lawyer, and attorney fee auditor. Litigation is stressful and expensive. Ms. Vinaccia’s tenacity, coupled with her compassion for clients, prompts an honest assessment of litigation strategy, value, and cost to ensure her clients’ receive a smooth trial experience. She assists clients with their litigation needs before judges, juries, mediation, trial and appellate court.