Near the end of my case, I am arranging exhibits and demonstratives I intend to use with my valuation expert. He is the lynch pin of the damage verdict I obtained against an attorney who ruined a business that was the first to the American market with an organic tequila. My expert has prepared valuation figures for the business to establish the harms and losses the malpractice caused. My opponent is a wily old strategist who over almost 45 years has established not only a formidable reputation for winning impossible cases, but an almost perfect 155 and 3 trial record.
Defendant's Attack on My Expert
Before the court room attendant ushers the jury into the courtroom, my opponent rises and argues that my expert, who will deliver the big damage testimony for me, should not be allowed to testify because "There is no factual basis to support the opinion."
I respond, "Your honor, my opponent is mistaken. The expert has spoken with an officer of the company he has identified as a comparable business. He obtained the information confirming the assumptions he made and testified to during his deposition."
The attack on this most important witness begins when the defense attorney seeks to prevent his reference to the information from the company officer.
The judge asks, "On what basis do you think I should exclude the testimony of the expert?"
Defense counsel smiles and says, I took his deposition. He hadn’t talked to the officer when I took his deposition. At the conclusion of the deposition, I asked the wrap up question I ask at the end of every expert deposition to limit the expert to his opinions expressed during the deposition.
The Judge's Lesson
The judge leans back, smiles, and asks, "Can you please read me how you wrapped up the deposition, because I can’t rule in a vacuum."
With no small glee defense counsel picks up his highlighted transcript and reads,
"Question: In the conversation we have had today, we have covered all of your opinions that you presently intend to voice at trial, have we not?The Defense attorney smiles and adds, "You see, your honor, he is bound to his opinions."
Answer: Yes, as I said, other than maybe some rebuttal testimony to your expert if you have an expert.
Question: so if in fact, you have some new opinions with regards to either your original task in this case or in rebuttal, would you be sure and tell Mr. Young?
The judge says, "Mr. Defense attorney, you are in the top 1 or 2 % of the attorneys who have ever tried a case in my department, but on this matter, you didn’t quite get there. You let the cat out of the bag as to a weakness the expert had and Mr. Young went out and propped up the testimony to make sure it’s admissible. Why you asked questions to tip Mr. Young off to a weakness is anyone’s guess, but you left the door open for him to do so. You see his expert has not formed a new opinion, he just got the information to make sure the opinion was admissible."
"But your honor, he can’t bring in that testimony."
"Oh I disagree Mr. Defense attorney. You haven’t tied anything down. You left the door wide open and Mr. Young has walked through the door. When I was trying cases and taking expert depositions, I would end with the following:
‘Mr. Witness, during this deposition, have you provided to me all of the opinions that you have formed and are prepared to deliver at trial?’ But then I went further. I asked, ‘If after this deposition, you perform any more calculations, and studies, or learn of any new facts or information from any source whatsoever concerning your opinion, or if the attorney employing you asks you to do any more work, will you inform your attorney so that she can tell me? We are going to adjourn this deposition now, but I am not terminating it. I will keep this deposition open so that if you do perform anymore calculations, or studies or learn of any new facts or information from any source, and you advise counsel, we can reconvene this deposition so that I can explore any new information, calculations, or opinions you may develop between now and the time you ascend the witness stand in trial.’"My expert took the stand and delivered his testimony, including reference to the conversation with the company officer – and the judge was right to allow it.
Many times we ask overly broad "wrap up" questions thinking we have protected ourselves when in fact we have protected nothing. I will be using the judge’s tactic to make sure that experts I depose never get the wiggle room my expert got in this trial. And by the way, if feels great to tell you, my opponent's record is now 155 and 4!
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