Our Experts

• Author: Leonard H. Bucklin
• Pages: 117-130

7. Our Experts

§7.1 Expert Witnesses

Two tabs are devoted to the witness summaries and materials you will need at trial to

examine expert witnesses. One tab is headed “Our Experts.” That means your client’s

witnesses, paid or otherwise in your control.

Everybody else falls under the tab called “Their Experts,” even if the expert is

employed by a friendly co-plaintiff or co-defendant. If the expert witness is not in your

control, he is not “Our Expert.” He could become adverse if his employer settles before

the end of the trial. At the very least you can expect the friendly co-plaintiff’s expert wit-

nesses to disappear out of the court’s subpoena power range.

You should use the usual Witness Summary form (WS) for each of the experts. Add

behind the WS the additional information that will be helpful in examining the expert at

deposition or trial. Additional instructions and forms for organizing you to deal effec-

tively with expert witnesses for either side may be found behind the Our Experts tab.

After the defense has disclosed their expert witness, find out everything you can

about that witness. The American Trial Lawyers Association and the Defense Research

Institute both have helpful expert witness data banks. If possible, obtain a transcript of a

previous trial or deposition in which the opposing expert witness has testified.

Consider the purpose for which you are taking the deposition of the adverse expert.

In most cases a period of discovery followed by settlement negotiations has taken the

place of a trial. If you believe that is the course your current case will follow, then you

need to think of a deposition as a method of obtaining a more favorable settlement. If

this is the deposition in a case which is almost sure to settle, then by all means shoot all

your ammunition at the expert witness during the deposition and cross-examine as you

would at trial. On the other hand, if the deposition is aiming toward a trial, then do not

give the adverse expert a practice run at his cross-examination. If you do, you will find

to your dismay that at trial the expert has thought up much better answers to what was

a devastating deposition cross-examination. Likewise, with your own expert at a depo-

sition, if the case is going to settle, ask questions that will show the other side your

“good stuff.”

§7.2 Federal Rule 26 Requirements

If you are in Federal Court and an expert is involved in the case, you should know

certain requirements of Federal Rule 26 without having to look outside your trial note-

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