Stites & Harbison, PLLC

FRCP 26(a)(2)(B) governing the disclosure of expert witnesses in federal court  was adopted in 1993 with the hope that "the length of the deposition of such experts should be reduced, and in many cases the report may eliminate the need for a deposition" altogether.   Advisory Committee Notes,  Fed. R. Civ. Pro., Rule 26, 28 U.S.C.A.(1993).

Despite widespread adoption and enforcement of the expert disclosure rule over the past four years (following imposition of a "nationally uniform practice" in December 2000, see Advisory Committee Notes, Fed. R. Civ. Pro., Rule 26, 28 U.S.C.A. (2000)), ample anecdotal evidence suggests that expert witness depositions today are nearly as lengthy—and just as common—as they were before the 1993 amendments.

Why are expert depositions still the rule rather than the exception?  There are at least two likely explanations, neither of them terribly flattering to the legal profession.

It may simply be a case of "I can, therefore I will."  Because a lawyer can nearly always justify the deposition of an opposing expert, the opposing expert's deposition is taken.  Never mind that travel, the court reporter's fees, the witness's fee, and the deposing attorney's fee can quickly add up to $10,000 or more.  Never mind, too, that most litigators go from receiving the expert's report to scheduling the expert's deposition almost as thoughtlessly as starting their cars and shifting into gear.

The decision to take an opposing expert's deposition also may be the product of reasoned fear.  Either the attorney or the client (or both) has reasoned through the consequences of a bad litigation result attributable (in fearsome hindsight, of course) to a failure to depose the other side's expert.  Under any readily-imagined scenario of this kind, the decision maker concludes that it is better to take the deposition than to suffer the consequences of post-litigation recriminations.

Regardless of the thought process (or lack thereof), too little consideration is routinely given to this question:  "Now that I know all of the witness's opinions, and the basis and reasons therefor, along with the data or other information considered by the witness and any exhibits the witness will use to support these opinions, and I also know the witness's qualifications, publications, compensation, and testifying history, should I take the witness's discovery deposition?"

Ironically, despite the best intentions of the Advisory Committee that wrote and recommended Rule 26(a)(2)(B),  many attorneys answer "yes" to this question because they simply do not trust the expert reports provided by their opponents.  Notwithstanding the plain language of Rule 26—and helpful case law, e.g.,Elswick v. Nichols, 144 F.Supp.2d 758 (E.D. Ky. 2001)—these litigators also tell hair-curling stories about expert witnesses allowed by a federal trial court to testify to all sorts of opinions not contained in the expert's pre-trial report.  Deposing the witness, these lawyers reason, will cut down on experts who conceal their opinions or stray from their reports—and provide extra leverage with those blankety-blank trial judges who are prone to let experts roam far from the language of their pre-trial disclosures.

Just stop for a moment.  Go back and read the question:  "Now that I know all of the witness's opinions, and the basis and reasons therefor . . . ."  Assuming that an expert's disclosures are complete, what does a discovery deposition promise that the rule does not already require?  If a lenient trial judge is going to let an expert stray, is it really going to matter whether the witness is straying from a signed report versus 300 pages of sworn testimony?  Might it actually be easier to keep an expert on the reservation by using a ten page report to define the scope of permissible testimony as opposed to reams of (occasionally muddled) questions and (often evasive) answers?  If the trial judge egregiously errs on this score, will reversal on appeal be easier with a ten page report or a 300 page deposition?  See, e.g., Salgado v. General Motors Corp., 150 F.3d 735, n. 6 (7th Cir. 1998).

An experienced trial lawyer can certainly make a case for seeing and hearing an expert witness in a pre-trial deposition to assess demeanor, body language, and other intangibles.  But how many effective cross-examinations turn on exploiting an expert's appearance or mode of speech?  Effective cross-examination most often relies on exposing factual, methodological, philosophical, or legal flaws in the witness's work product.  Even grandfatherly types can be gently skewered on their own mistakes.

As a practical matter, many if not most expert witnesses are a known quantity—known to someone, that is.  Since every Rule 26-compliant disclosure comes with a list of four years of testimonial experience, it's not difficult to find a lawyer who will talk about a particular witness's demeanor, body language, and other intangibles.  There are also expert witness data bases to consult, obliging attorneys who can be polled via the latest list serve, web sites devoted to Daubert decisions (see Daubertontheweb.com), and commercial search services capable of finding skeletons in almost every closet.  Many of these resources are routinely scouted by counsel investigating his opponent's expert, but have you noticed that the opposing expert is still deposed no matter how much pre-deposition information is gathered by the deposing attorney?

    Deposing the other side's expert notwithstanding receipt of a comprehensive report can be stimulated by a plan to exclude the witness under the Daubert  principles codified in Fed. R. Evid. 702.  Potential exclusion of an adversary's expert witness for lack of reliability is certainly a valid reason for taking the witness's deposition.  Thoughtful practitioners have even advocated that an opposing expert must be deposed before being challenged under Rule 702, if only to keep a witness who survives such a challenge from later revising the Rule 26 report to respond to the movant's criticism.

While acknowledging that a planned-for Daubert motion is sufficient reason for deposing the other side's expert,  it is not always a necessity.  Before taking a witness's deposition as a prelude to a motion to exclude, serious students of Daubert and its progeny should spend a few hours with the Reference Manual on Scientific Evidence (2d ed.).  From Dr. David Goodstein's chapter "How Science Works" to Dr. Henry Petroski's "Reference Guide on Engineering Practice and Methods," the Reference Manual offers step-by-step guidance on deconstructing the factual and philosophical methodologies in such diverse fields as statistics, economics, epidemiology, toxicology, engineering, and medicine.  The Manual's extra cachet comes from being a publication of the Federal Judicial Center "in furtherance of the Center's statutory mission to develop and conduct education programs for judicial branch employees."  Id.

If the analytical tools of science and philosophy can expose the flaws of a  Rule 26 report, there is no need to take the witness's deposition.  The witness's report can serve as a basis for the Daubert motion just as readily as the witness's deposition.  In fact, a deposition is likely to give the author of a flawed report multiple opportunities to massage the methodologies employed and to add contingencies, conditions, and caveats.

When close analysis of the opposing expert's report yields pay dirt, stop.  Don't take that witness's deposition.  Make the Daubert motion and, even if the motion is unsuccessful and trial ensues, use the report to hold the witness to the information and opinions bearing his signature.

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John L. Tate, a partner in the Louisville, Ky., office of Stites & Harbison PLLC, is a Fellow of the American College of Trial Lawyers and a member of the Product Liability Advisory Council.