Depositions
detail. Establish one fact at a time and keep your questions pointed and narrow. An important objective is to establish whether the
defendant even has a memory of the care at issue, or is merely relying on the medical records in testifying about the underlying facts. If the defendant has a memory of the medical care at issue, you must fully explore all such memories, lest you receive a nasty surprise at trial when the defendant recalls that he did, indeed do x, y and z, even though he failed to document those facts in the chart.
Preparing for the Defense Expert’s Deposition Te preparation for the defendant’s expert’s deposition
is generally more involved than the preparation for the defendant’s deposition. Defense experts are likely to have a track record that includes publications and previous testimony. You should explore those avenues in preparing for deposition. Let’s start with publications. You need to procure the defense expert’s curriculum vitae well in advance of the deposition. Review the expert’s publications to see if any deal with issues similar to those in your case. Infotrieve or a similar service can locate any such articles. Read the articles with an eye to using the expert’s own words against him. Any review of the expert’s list of publication should be made if they have authored any textbook chapters or edited any textbooks dealing with issues similar to those in your case. If so, make the investment and buy the textbook. Used textbooks can often be purchased cheaply on
Amazon.com or other online seller. You can sometimes strike gold in reading an expert’s publications. A number of years ago, I had a case involving the death of a four month old from inadequately treated pneumonia. One of the defense experts was from a major Ivy League medical school who had edited a two volume text on pediatric critical care medicine. I purchased his book and found page after page of pure gold for my case. I went to the deposition with his textbooks under my arm and proceeded to ask him whether he agreed with quote after quote from his book. He could either agree with me, or disagree with his own book. He chose to disagree with his book, but the point was made. Another fruitful avenue of exploration when preparing
for the deposition of defendant’s experts is TrialSmith. TrialSmith is a search engine that purports to hold over 473,000 documents in its data base. For a fee, you can gain access to many thousands of deposition transcripts from all over the United States. My firm has purchased a membership to TrialSmith that allows us to review the entirety of an expert’s deposition transcript before deciding whether to purchase the document (generally for $28, although discounts are available
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if you donate transcripts directly or through MAJ). It takes time to go through deposition transcripts, but, as with the expert’s literature, sometimes you can strike gold. In addition, TrialSmith also lists MAJ listserv messages in which the expert’s name has been raised. Using that feature, you can find out who else has dealt with the expert and procure additional information.
As with the deposition of the defendant, you must know
the medical record in order to effectively take the deposition of the defendant’s experts. If you have done your job, you will likely know the record better than the expert, and this gives you the advantage. When taking the deposition of defendant’s expert, it
is critically important that you know and understand the medical issues in your case. Otherwise, you will be run around in rhetorical circles and will come out of the deposition ill prepared to cross examine the expert at trial. Remember, one of the primary reasons to take the expert’s deposition is to explore and understand every opinion that he or she will offer at trial and every basis for each such opinion. Once you have all opinions, you can then determine where the exploitable weaknesses are in the testimony. Te only way you can understand the expert’s opinions is by understanding the medicine underlying the opinions.
Trial Reporter / Winter 2011 29
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