5.10 Preparing Experts for Deposition and Trial

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

5.10 PREPARING EXPERTS FOR DEPOSITION AND TRIAL ⁷⁵

5.1001 Preparing for Deposition. Preparing an expert for deposition is similar to preparing a party or any other witness for deposition. If it is not possible to meet with the witness in person, the attorney should at least spend some time discussing the upcoming matter by telephone. Some experts will require greater preparation than others. Therefore, if counsel is working with the witness for the first time or counsel otherwise does not have a good sense of how the witness will perform, he or she should not wait until just before the deposition to talk to the witness. A preparation session several days before the deposition will allow the expert sufficient time to refer to the medical records to clear up any areas of confusion or uncertainty before the deposition.

With standard of care and causation experts, counsel will want to make certain that the witness has a good recollection of the facts of the treatment at issue as well as of the positions and representations of both parties. Damage experts will need to be familiar with data concerning subsequent treatment, prognosis, and economic issues. It is distracting and ineffective for the witness to constantly leaf through pages of deposition transcripts and medical records for answers to questions being posed at deposition, at least with respect to facts that are central to the controversy. It is preferable for the expert to make notes or a time line concerning the key facts.

Counsel and the expert should review the theories of the plaintiff's case and of the defense. The witness should be prepared to express opinions, give the basis for each opinion, and cite any medical literature that supports the view. Counsel and the expert...