The first in a series of articles on basic strategies for questioning commonly encountered witnesses in civil litigation. This week: expert witnesses.
Few depositions carry more weight than the one taken of the other side’s expert. Expert opinions often decide complex civil cases — whether the dispute concerns medical causation, lost profits, a tire failure, or the value of a closely held business. The expert deposition gives the cross-examining lawyer one structured chance to test those opinions before trial, surface admissions that support summary judgment or a Daubert motion, and lock the witness into testimony that cannot later be revised. Treat it as routine, and the expert becomes a damaging trial witness. Treat it as a focused exercise in fact-gathering and admissions, and it becomes one of the most powerful tools in civil litigation.
Treat it as routine, and the expert becomes a damaging trial witness. Treat it as a focused exercise in fact-gathering and admissions, and it becomes one of the most powerful tools in civil litigation.
Reject the “Usual Stipulations”
Before the first question, opposing counsel may invite the parties to proceed under “the usual stipulations.” Penn State Dickinson Law professor Gary S. Gildin, in An Updated Practical Guide to Taking and Defending Depositions, warns that no judicial definition of that phrase exists, and accepting it can quietly waive rights the deposing lawyer will later want. The right reply? Gildin advises litigators to ask which specific stipulations are being proposed. With expert witnesses, deposing counsel should consider affirmatively proposing a waiver of read-and-sign — thus denying the expert and retaining counsel a chance to massage answers on an errata sheet — and offer that all objections are preserved for trial, eliminating the drumbeat of form objections that breaks concentration during the most demanding part of the questioning.
Master the Expert’s Report
Every expert deposition begins with the expert’s written report and the materials disclosed under Federal Rule of Civil Procedure 26(a)(2). The cross-examining lawyer should know the report cold: every opinion, every assumption, every cited study, every appendix.
The lawyer should also pull the expert’s curriculum vitae, prior testimony in similar matters, professional publications, conference appearances, and social media. Search engines may also surface useful material. Working with a retained expert before the deposition pays will also pay dividends. A retained expert can flag methodological weaknesses, suggest alternative methods that would have produced different results, and identify assumptions the opposing expert overlooked. Those alternatives become questions on the record.
When cross-examining experts, the examining attorney should probe for favorable testimony that can be used at trial, seek as-yet unknown facts, lock the expert’s testimony down, and set up factual predicates for dispositive motions.
Use the Three Modes of Questioning
Gildin describes three distinct modes of questioning the deposing lawyer must consciously toggle among, and each maps cleanly onto the expert deposition.
The first mode is the nabla — an inverted triangle that handcuffs the witness to the transcript on a discrete topic. Open with a broad question: “Tell me every basis for your opinion that the bridge failed because of inadequate gusset-plate thickness.” Follow with “Anything else?” until the expert says no. Close with “Have you now told me every basis for that opinion?” If the expert later supplies a new basis at trial, the transcript reads as straight impeachment. Build a nabla for every distinct opinion, and a separate nabla for the bases of each.
The second mode is admissions testing with leading, single-fact questions. This becomes the spine of a cross-examination to test whether the expert’s opinion is admissible under the U.S. Supreme Court’s standard for admissibility of expert testimony, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Each question contains exactly one Daubert factor, asked in yes-or-no form: the technique was not tested for the specific scenario; the underlying paper was not peer-reviewed; the error rate was not calculated; the method has not been used outside litigation. A two-fact question invites a discursive, self-rehabilitating answer; one fact at a time produces clean concessions ready for a possible motion to exclude.
The third mode is surfing for nablas — open-ended questions that invite narrative, to discover opinions, assumptions, and reliance materials the lawyer did not know to ask about. New topics get marked on the legal pad and converted into fresh nablas before the deposition ends.
Test the Three Pillars of Rule 702
Federal Rule of Evidence 702 requires the proponent to show that the testimony rests on sufficient facts or data, reflects reliable principles and methods, and applies those methods reliably to the case. Probe qualifications as they relate specifically to the sub-discipline at issue. Walk through every step of the methodology, framing each Daubert factor as a one-fact admission question. Ask whether the expert applied the methodology to the actual record or to facts assumed and supplied by counsel — under Rule 702(b), an opinion built on a lawyer’s narrative rather than the evidence fails the “sufficient facts or data” requirement.
Probe Bias and Lock In Opinions
Finally, a thorough expert deposition should uncover the expert’s compensation: hourly rate, total billed in this matter, and total billed by the firm or client in past matters. Ask which side of the bar typically retains the expert and what share of recent work has been for one side. Before closing, build the final nabla — confirm that every opinion to be offered at trial has been disclosed, every basis identified, and no further opinions or supplemental reports will follow. Then stop.
The Bottom Line
A productive expert deposition rests on rigorous preparation, the right stipulations, and disciplined execution of the three modes of questioning. Master the report. Reject the usual stipulations. Build a nabla for every opinion. Test each Daubert factor as a one-fact admission. Mark every exhibit. Lock in the opinions, then stop. Litigators who follow that sequence leave the deposition with the materials needed to win a Daubert motion, support summary judgment, or dismantle the opinion at trial.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 801.641.8304, or email experts@adviseandconsult.net.