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Minimize Mistakes at Your


Expert's Deposition Christian C. Mester


I. Introduction Tis article stems from an outline that I use when preparing


experts for deposition. Personal experience, both positive and negative, and suggestions taken from listservs and breakfast meetings have led me to modify it over the years. Accordingly, this “article” is essentially in outline format so that you can use it during your own preparation sessions.1 It is paramount to properly prepare your experts in order to


avoid or minimize potential mistakes. First, you must ensure your expert devotes proper time and attention to your client’s case. If you have an expert unwilling to properly prepare for the case, get someone else. What follows are general areas to include in deposition prep with your expert (with the focus on standard of care experts):


II. Documents to Have with You in Advance Like everything else in litigation, advance preparation is


the key to a smooth preparation session as the deposition nears. Before


your session, know the medical


depositions, literature, and important issues in the case. Te more prepared you are, the more productive your session will be. • Pull out the key documents and review them with the witness. Do not assume that the expert has the records memorized.


• Have a list of everything you have sent to the expert and check in advance to determine if he/she is missing any documents.


• Make sure the preparation session takes place sufficiently before the deposition so that you have the opportunity to fit in additional sessions if needed or get additional documents to the expert.


III. The Overview


• Give the expert an overview for the session: include the basics of a deposition followed by the specifics of the case.


• Tell your expert that you hope this does not sound too basic for them, but that you do a comprehensive preparation session like this with all of your experts.


• Provide brief history of the case: who defendants are, defense counsel, posture of case, county and state where pending, trial date and when you expect to call the expert.





If deposition is to be videotaped, make sure witness knows what to wear, how to sit, where to look, etc.


1 None of the suggestions in this article should be interpreted to constitute a statement of the legal standard of care.


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IV. Deposition Basics 101 Even though most of these suggestions are second nature


to us, mention them to your expert to ensure you both are on the same page. Err on the side of the session taking too long instead of not doing enough and your expert not doing well at deposition. • Let the expert know that the purpose of the defense taking their deposition is for counsel to: (1) learn facts/ opinions; (2) memorialize the facts as true to set up impeachment; and (3) evaluate them as a witness.


• Provide the expert with a copy of the Notice of Deposition in advance and tell them to bring their entire file to the deposition.


• Ask if the expert believes there are any additional materials they will need before finalizing their opinions: if so, get those materials to them.


• Review the meaning of “more likely than not/to a reasonable degree of medical probability/certainty.”





If they have published on the topic at issue, review those specific articles.


• Ask the expert to bring an updated curriculum vitae with them.


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