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Hints on adverse expert witness depositions.

Attorney Form Checklist Deposition Testimony

A deposition of an expert generally is completely unlike the cross examination of the same expert at trial. At a deposition you want to learn everything the expert might say at trial, while at trial you probably do not want to have him repeat his direct examination. Further, at trial you may be trying to keep his opinions out of evidence, while at a deposition you need to find them, so that you may the more successfully attack the foundation for their introduction at trial.

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List items which he used in preparing his analysis (even if he is not using them now).

Copy everything that the expert has brought with him, even if he is not using it.

If witness withholds any documents: ask if he has "considered, or relied upon it" in forming his opinion or preparing for the deposition. Identify with great particularity, everything he has refused to give up (number of pages, color ink, typed or handwritten, stapled or an original or photocopy, etc).

Any Demonstrative Exhibits prepared?

Any Physical Evidence gathered?

Has he seen the attorney - client fee contract (Get it!) [ See, e.g., Texas Professional Code Rule 1.04 says A (c) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.@

Has he seen the actual time slips? (Get them!)

What time keeping method does his own attorney firm use?

Is it capable of recording in .10 hour increments?

What time increment does his firm use?

What time keeping method does the billing attorney firm use?

Is it capable of recording in .10 hour increments?

Qualifications of the witness.

        Consider himself an expert? In what fields?

        Get his curriculum vitae.

        All his education or job training.

        Cases he has worked on or testified in (names of cases and attorneys; type of case).

Limit his qualifications.

         In what fields does he agree he is not an expert?

         Lack of experience in this specific type of case, et cetera.

How was he contacted to come into the case?

        Who referred the case to him? When?

        Does he advertise?

        Testifies to make money

        Fee basis he Is paid? By hour? At trial?

        How much paid to date?

         Friend of the attorney for whom he is testifying?

Is he prepared to express opinions in this case?

(Is there anything he wants (or expects) to do to express trial opinion, but he has not yet done? - testimony? investigation?)

Nail down that with nothing more than he now has in the case, he can express his opinions.

What did he personally do to be able to express an opinion?

Has he published any professional papers?

         Do any of your published papers discuss items involved in this case?

        Studies done by you involve subjects in this case?

What state rules or standards apply?

        List all applicable standards.

        Why they do or do not apply.

        There are no other standards that apply (to limit him at trial).

Refer to publications while studying this case?

What statistics exist on attorney fee rates in the state?

        Pin him down that there are no others that he knows about.

        Then ask if he considers these statistics reliable?

        Why? Or Why Not?

        Then ask what these statistics show in regard to this case?

(1)

(2)

(3)

Are there any other "opinions" -"approvals"- or "criticisms" that you have regarding the attorneys fee bill, fee recording procedures, or attorneys qualifications? (This is an attempt to limit him at trial to these.)

He probably used the state professional rule factors in his opinion on why the amount he chose is a "reasonable fee" .  Whether or not he did,  so go over each one (or at least the bolded ones below ) and see what he did i(or suggest be done) in adjusting one way or the other from the market rate (or the contract fee rate in this case) for each of the items.

Texas Disciplinary Rules of Professional Conduct, I. CLIENT-LAWYER RELATIONSHIP, Rule 1.04 Fees

(b) Factors that may be considered in determining the reasonableness of a fee include, but not to the exclusion of other relevant factors, the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.