In many courts, depositions of malpractice experts are routinely conducted. In many respects, the deposition serves as a precursor to the expert’s trial appearance and can provide both information and insight to the examining attorney as well as the testifying expert. Depositions are verbal question-and-answer sessions conducted by adverse counsel, typically after all expert reports have been exchanged. They afford the opposing lawyer an opportunity to explore the expert’s credentials and opinions. All attorneys involved in the matter are commonly present and entitled to conduct examination.
Depositions are routinely taken either at the expert’s office or at the office of the retaining lawyer. Unless inconvenience is a major consideration because of the distance between your office and that of retaining counsel or because of your patient schedule, your deposition should be taken at the office of the retaining lawyer. The “sanitized” conference room of retaining counsel is preferable to the private office of an expert for the following reasons.
Because most practitioners’ private offices display texts that the expert has gathered over the years, counsel may question the expert at deposition about relevant publications on display. If any of the material in the expert’s library is later found by the adverse attorney to contain statements inconsistent with the expert’s opinion, it may be identified and used against the expert at trial.
Similarly, office waiting rooms often contain brochures and pamphlets, which opposing attorneys might take and identify. If any of this material that you provide to your patients reveals information contrary to your report or deposition testimony, adverse counsel may use this fact to impeach you at trial. The convenience of scheduling the deposition at your office may be worth sacrificing in order to avoid potential problems created solely by the locale of the deposition.
The fees associated with expert depositions are discretionary within reason. Time devoted to the deposition is properly and typically billed on the basis of an hourly fee schedule. Although discussed in an earlier section, it bears repeating that the customary hourly fee depending on the specialty of the expert generally ranges from $250 to $350. Some experts prefer to charge a flat rate, which also is generally acceptable as long as the total deposition fee when computed on an hourly basis at the conclusion of the deposition falls within this range. Reasonable fees for travel time to and from the deposition will be the responsibility of either the examining attorney or the retaining attorney as determined by the court’s rules. Time devoted to deposition preparation or a predeposition meeting with retaining counsel will not be the responsibility of the attorney conducting the deposition. Reasonable hourly or flat fees for such effort are properly charged to the retaining lawyer.
Although some experts may insist on being paid by adverse counsel immediately upon the conclusion of the deposition, this is not customary. If you so insist, you may develop a reputation of being a difficult expert to work with. However, if it is critical that you receive immediate payment, inform retaining counsel of this requirement well in advance of the deposition date. Otherwise, generate a bill after the deposition and supply it to the retaining lawyer, who will then forward it to adverse counsel for payment. Payment is generally provided within 30 to 60 days of the invoice date.
The expert’s testimony is given under oath and is recorded by a certified court reporter or stenographer hired by the attorney conducting the deposition. After the deposition, the expert’s sworn testimony is transcribed by the court reporter, and a transcript is prepared and usually furnished to all counsel within 2 to 4 weeks of the deposition. The retaining attorney should supply a copy of the transcript to you. If one is not received within 60 days of the deposition, contact retaining counsel and request a copy.
Upon receipt of the deposition transcript, take the time to read— not skim— the transcript. Make certain that the questions and your answers have been accurately recorded. Although court reporters are professionals and quite precise in their effort, the subject matter of a malpractice expert’s deposition is highly technical, and terminology employed by an expert witness may be foreign to even the most experienced of court reporters. Accordingly, the possibility exists that a mistake in recording can be made. Rapid speech or soft tones may also cause an error in recording, as can the circumstance where the questioner and the witness are speaking at the same time.
Inasmuch as a defendant’s case may rise or fall on the testimony of the liability expert, and given the fact that deposition testimony can be used to impeach the expert at trial, it is essential that the deposition be accurately recorded. An unrecognized court reporter error that significantly alters an expert’s testimony at deposition might be used against the expert at trial.
If you believe that the transcript contains an error, alert the retaining attorney as soon as possible. Counsel will then inform the court reporter, who is duty-bound to address any transcription errors. Because many court reporters use equipment that also has voice-recording capability, confirming the accuracy of a stenographically recorded question or witness’s response usually can be readily accomplished.
Of course, actual testimony cannot be changed simply because you do not like your response or the way an answer reads. To prevent errors of this type, it is strongly recommended that you choose your words carefully and answer deliberately.
The deposition allows the adverse attorney to inquire into the credentials of the expert and to explore the opinions held by that expert. It can be a relatively short or exceedingly protracted proceeding. The length of the deposition depends on several factors, including the content of the expert’s curriculum vitae (CV), the number of defendants, the nature of the plaintiff’s dental history, the complexity of the issues, the examining attorney’s familiarity with the subject matter, the examining attorney’s knowledge of the expert (as a result of the expert’s participation in other matters), the length of the expert report, the number of opinions offered by the expert, the experience of the expert witness, and the style of the examining lawyer or lawyers. Although a typical deposition may take 2 to 3 hours, it certainly may exceed 3 hours.
The deposition may be used both to gain a better understanding of the expert and the expert’s opinions and to elicit testimony that may be valuable to the attorney taking the deposition. Although the examination may appear exploratory, adverse counsel is probing for weaknesses or soft spots in the expert’s opinions and will attempt to gain concessions from the expert. Experienced attorneys know that despite the conviction with which opinions appear to be held, carefully crafted deposition questions may cause the expert to reveal opinions favorable to the questioning attorney’s client or to equivocate on certain pivotal issues.
It is expected that at deposition you will support previously articulated opinions. Do not cave. Yet be reasonable; reasonableness is the touchstone at deposition (and at trial). Your opinions should be reflective of the general notion that your practice area is not an exact science. You should be prepared to offer opinions based on probability. If an opinion can be stated with certainty, do so, but always recognize that in all but the rarest of circumstances, the opposite of the proposition you espouse on a given issue may be possible. However, it is not recommended to feign reasonableness by testifying that “anything is possible.” This statement is blatantly unsupportable. Expect that capable adverse counsel will use it against you at trial.