by Stephen Acker

Although theoretically an expert could prepare a chart or demonstrative exhibit for use at trial after the deposition, by asking whether the expert has any charts or exhibits he or she intends to use as an aid to presenting expert opinions at trial, two benefits are obtained.  If the materials have already been prepared, they should be presented at the deposition.  If they have not been prepared, a basis for objection will have been created which may aid counsel at time of trial in obtaining time to preview the exhibit, perhaps prepare something in response, or even argue that it should be excluded as not having been disclosed during the deposition.

by Stephen Acker

Just as it is important for the examining attorney to fully inquire about all opinions that an expert intends to offer at trial, it is just as important to pose that question more than once, concluding the deposition with the question: “Are there any other opinions which you have not yet disclosed to us so far in your deposition which you intend to offer at trial.”  Without closing the gate, so to speak, the expert will have free reign to construct new opinions or variations of ones already disclosed in deposition leaving opposing counsel in a much weaker position to interpose an objection when the expert starts to testify as to the new material at trial.  Counsel offering the expert can be counted upon to simply argue that the expert was never asked about the subject matter or didn’t have the opportunity to fully respond to earlier questions seeking all his opinions.