Authored Articles & Publications May 22, 2019

Rooms with a View: Cross-Examining Experts in Depositions

BB&K Partner Mark Easter Walks Us Through the House of Depositions in Riverside Lawyer Magazine

Rooms with a View: Cross-Examining Experts in Depositions

By Mark Easter

If there is any activity in litigation that I do find — and I hate to use this word — “fun”, it is taking an expert witness deposition — especially the key expert on the other side, which in my practice is usually their appraiser. In this setting, I am often meeting the other side’s star witness for the first time. It is my opportunity to question him or her, without the judge or jury present, find out how strong each side’s case is, and set up my cross-examination at trial. It is “fun” because if the case has reached this point, it usually means that 1.) we have a large spread in the valuation opinions and 2.) someone has made a mistake. And if I am on top of my case, that hopefully means that the “someone” is the expert I am about to depose. So the deposition becomes a search — a search for hidden treasure in a big house. An expert deposition is like a house with many rooms that must be searched. Unless you have an unlimited budget (rare), you have limited time to search all those rooms. So you must know, or at least exercise good judgment about, how long you should search each room, as the treasure is usually only in one or two of the rooms. The better you know your case, and the work done and opinions held by your own expert, the better you will know how long you should stay in each room. SO, what are these “rooms?”
 
1. The Foyer:
It is important to confirm, up front, what the expert’s specific ASSIGNMENT was, and what conclusions the expert reached. Often you know this already because the expert’s valuation statement, report, or entire file has been exchanged or produced before the deposition. But not always. Knowing the expert’s specific assignment and conclusion(s) is basically the foyer. You cannot search the other rooms before you have stopped here.
 
2. The Trophy Room:
Now that you know what the expert did, you need to determine what his or her QUALIFICATIONS were to do it. Survey all of the diplomas, plaques, certificates, client lists, and war stories and see if anything in the room is relevant to your case. You cannot really know how much time to spend here if you haven’t paid at least a brief visit to your own expert’s trophy room. If the medal collections look pretty similar, then maybe you move to the next room.
 
3. The Bedroom:
Here, I’m trying to identify any BIAS. Are all or many of the expert’s medals and belt notches coming from the same source? Is the expert “in bed with,” or have too close of a relationship with, the same attorney, client, or type of client? So in my cases, does the appraiser almost always work for property owners, but never the agency? Did your client, or your partner down the hall, recently give this expert a “medal”? You would not want to have that sprung on you at trial. Again, for this search to be meaningful, you need to be familiar with where your own expert’s assignments usually come from.
 
4. The Living Room:
Every expert assignment has an initial meeting or “kickoff.” You want to learn how the expert was contacted and retained by the attorney and/or the client. Recreate those initial “living room” meetings. How was the assignment decided on? Was the assignment phased? Some experts I’ve deposed were first hired to do a “preliminary” analysis in phase 1, then asked to “finalize” their conclusions in phase 2, and then be designated, deposed, and called to testify at trial in phase 3. This situation usually produces good cross-examination material for trial, but that’s another article. And just as important—what information, documents and instructions was the expert given? In my cases, legal instructions on issues like the date of value, the larger parcel, highest and best use, and the “after” condition can be very material.
 
5. The Pantry:
Next, what information did the expert collect in his INVESTIGATION? My partner, Ken MacVey, taught me that while the deposition is the basis of cross-examination of the expert, the investigation is the basis of the expert’s direct examination. You want to find out all of the expert’s sources of information, and everyone the expert interviewed. All of the information collected is the expert’s “pantry.” The goal here is not to critique the pantry; it is simply to make an accurate record of what was in the expert’s pantry. Having said that, you do want to know whether the expert spoke to the same people that your expert spoke to and is relying on the same, or at least similar, information. Is there “garbage” or wrong information in the pantry? Accordingly, make sure you have spent some time in your own expert’s pantry before taking the deposition.
 
6. The Kitchen:
The expert’s analysis of the information from his pantry is the “kitchen” where the expert’s conclusions were “made.” What “tools” — assumptions and methodologies —  did the expert use? How did the expert organize, adjust, treat, or “mix” the data? With appraisers, that might be things like time adjustments, growth rates, depreciation rates, or capitalization rates. The goal here is not to second guess how the expert reached his or her conclusions, or argue with the expert — as some attorneys feel compelled to do. The goal is to make a clear record of what happened in the kitchen — how the expert reached his conclusions, so that you can impeach the expert if he tries to tell a different story at trial. In fact, you are more likely to achieve that goal if you do not argue or quibble with the expert.
 
7. The Closet:
Rather than quibble with the expert over her analysis, your time is better spent confirming not only what information the expert relied upon, but what data the expert disregarded and left “in the closet” —  what information, if any, the expert rejected. Maybe that data was not “useless,” but information that your own expert considered.
 
8. Time Management:
Sharp instincts for how much time to spend in any of the above rooms certainly come with experience. But thorough preparation and knowing your own expert’s analysis, will also help keep you on track and not waste too much time in one room. Strategic restraint is also vital. You may think that a medal in the trophy room was undeserved. That information in the pantry was wrong. That there was a missing ingredient or methodology in the kitchen. But those are the “treasures” that you have found — treasures for cross-examination at trial. If you debate the expert over those treasures in the deposition, they almost always lose their luster, because now your opponent has a roadmap for preparing direct and/or re-direct examination at trial. I hope you have found my house analogy helpful rather than hokey. If you thoroughly prepare (including an inspection of your own expert’s “house”), focus on the goal of locking in the expert’s testimony in each room, and (where appropriate) exercise strategic restraint, your tour through your opponent’s expert witness house should be successful.

Related Article: Expert Witnesses: Effective Questioning
 
This article originally appeared in the May 2019 edition of Riverside Lawyer magazine, a publication of the Riverside County Bar Association. Reprinted with permission.

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