Litigation - Kohn's Top Ten Rules of Preparation for Opponent's Expert Testimony©

10/01/2000

Use your best efforts to force early expert information. Consider proposing the use of a case management order requiring early expert identification, and obtain the expert’s report, any previous testimony, and documents she relied on as soon as possible.
 
Investigate the expert. Use the internet, talk to other lawyers who have deposed her and read everything she has written. Find out if she has ever been disqualified as an expert or even had bad publicity for any reason. Check out her cv (did she really win that Nobel prize?).
 
Get any of her prior testimony. Prepare to cross examine her on any inconsistencies with these and with any publications.
  
Review the documents she reviewed. Prepare to inquire about the documents; which ones were provided to her and which ones she located, and particularly, about the relevant documents that she did not review (there will always be some), and why the information they reveal would not change her opinion.
 
Have your experts review the written report. Have your consulting and testifying experts read and analyze it for the underlying assumptions and the reliability of its methodology and conclusions.
 
Use your expert to assist in preparing your deposition outline.
 
Consider whether you need to identify an opposing expert. You don’t always since you may be able to exclude the testimony or demolish testimony by cross. But remember deadlines for identification of your experts in making this decision.
 
Have your expert attend the deposition to assist you. Some rules require that you provide prior notice that your expert will attend, so be sure to provide appropriate notice.
 
Pin the expert down on whether the deposition opinion is final. If she says there is further work to be done, find out what so you can prepare for the next deposition; you will be entitled to depose her again if she has not concluded.
 
Test the expert’s conclusions against admissibility standards. Tie her down to her assumptions and methodology and conclusions, and then process those through each of the admissibility rules.

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