As was covered in the first paper on professional expert witnesses you must take their deposition a certain way. This technique is probably best explained in comparison to taking the deposition of a medical expert witness who is relatively inexperienced in the process.

The inexperienced medical expert will not be thinking in terms of stinging the examiner whereas the professional expert will. It is therefore acceptable to ask open ended questions to the non-pro because this expert will tend to answer honestly and will innocently testify to all medical points without regard as to how those points might impact the case. On the other hand the pro will pre-plan answers to avoid innocently helping the examiner. The pro many times will even go further and use the platform to damage the examiner’s case. Accordingly, very, very tight control of the expert is required.

Open ended questions to the pro expert must not ever be asked in deposition. Given that your dealing with a pro you have to expect to more fully prepare for the deposition. Each question must be studied and closely matched to the medical science. It is best by far to only ask yes/no or true/false questions to the pro expert. You must tell the expert on the record that you only want true/false answers to all questions and that if this cannot be done to simply say that it cannot be done. The pro must be admonished not to do anything other than to tell you that the question cannot be answered as given. You then must either ask the question so that it can be answered or move on to the next question. This is why more detailed medical preparation must be done because there is usually a way to ask the question such that the expert can and must answer it. Do not, I repeat, do not ever allow the expert to take control of the situation and explain why the question can’t be answered. This will open the door for the experienced expert to give the speech that has been memorized and which is burning from within. Do not ever allow this. The frustration of the pro expert when denied this platform is immeasurable. Moreover, opposing counsel is often times not medically savvy enough to either remember the medical point missed or help the pro get his aching testimony out later.

Short examples of what is meant are as follows; If the point to be proven is that the plaintiff has low back pain from a traumatic slipped disk which the defense pro expert says doesn’t exist, then the line of questioning might:

Doctor, I am going to ask you a series of medical questions. I ask that you please answer the question as either true or false. If you cannot answer such please just tell me that you cannot do so. Do not answer another question, do not try and explain anything and do not tell me why you do not understand the question. It will then be my responsibility to ask a proper question, fix the problem or move on. In short, I do not want you to try and help me at all. Is that understood?

Doctor,

True or False.....

A slipped disk can cause low back pain.

Plaintiff has low back pain.

A slipped disk can be caused by trauma.

Plaintiff’s problems started with trauma.

A MVA with twisting and bending of the low back is trauma.

Plaintiff had twisting and bending of the low back.

Pain from a slipped disk can radiate to the leg.

Plaintiff’s pain radiates to the leg.

Pain from a slipped disk can come and go.

Plaintiff’s pain comes and goes.

And so on....

At the end of this you’ll have an enormous amount of friendly material and favorable evidence for the jury. If, on the other hand, you were to ask the pro;

Please explain what a slipped disk is...would you?

Imagine what he’s going to say! He’s going to kill you and then bury you in a shallow grave.

Try this approach next time and let us know.