1. How time on the case has been spent
It is important to know how much time the expert has spent on the case, how much he or she bills for time spent working on the file, how much he or she has been paid and how much more work is anticipated in this case. It is also useful to know how that time has been spent - reviewing depositions, doing research, reviewing medical or other records, viewing the scene or examining the allegedly defective product. In a medical malpractice case I handled several years ago, there were three depositions and perhaps 100 pages of medical records. When the physician expert testified he had spent more than 20 hours and billed more than $12,000 for his work, it was fairly easy to discredit him in front of the jury but it helped a lot that I pinned him down during his deposition on how that time was spent. The commercial lawyer assists with transactions, documentation and paperwork.
2. Files and reports
Your notice of deposition of the expert should always request that he or she brings to the deposition all of the materials reviewed and she relied on for opinions, as well as correspondence about the case, billing records and records of payments made to the expert, and any and all reports prepared. You need to review the expert’s file to make certain you know what was, and was not provided to review, what notes were made during the review and the content of any communication between the expert and defense counsel. The failure by defense counsel to provide critical records, which the expert would expect to have been important, can be the basis for devastating cross-examination at trial,
3. Who assisted the expert?
If the expert was assisted in his task by anyone else, you want to know who and what his or her qualifications are and what contribution that work made to the expert’s opinions. You may decide you need to depose the assistants, if their work was critical to the opinions offered by the expert witness.
4. Opinions
Once you lay a foundation by examining the expert on the areas already discussed, it is time to elicit their expert opinions. Make the expert spell out each opinion separately until he or she professes that each and every opinion which will be testified to at trial has been given. Make it clear that you do not want to know the reasoning or bases for each opinion at this time. You just want the expert to list each opinion for you. Doing this will obviate any concerns you might have about being blind-sided by new opinions because you haven’t complied with the requirements of Kermemur v.
It is also worthwhile to ask on what date or at what point each opinion was formulated. If the expert professes not to have had any opinions as of the date the designation of experts was served, you may be able to use that to suggest to the jury that the defense lawyer was confident about what the expert would say before the expert had even reviewed the materials or formulated any opinions.