Expert Depositions and the Daubert Challenge, Vol. 1
This is the first post in a series about employing the Daubert challenge in expert depositions. Learn more about our Daubert challenge consultant service here.
Psychologists and psychiatrists fill an ever-expanding role in today’s complex civil litigation. I read with great interest the following article in the ABA Journal on cross-examining these types of expert witnesses. This quote particularly stuck out:
“I crossed Dr. Phil [McGraw] as an expert in a med-mal case in the late 1980s in a little town out in West Texas,” says Chamblee, a founding partner of Chamblee Ryan in Dallas. “He hadn’t yet been an expert for Oprah Winfrey in the beef case in Amarillo. But he was often hired by plaintiffs’ lawyers to be an expert witness in litigation. I’d done some crosses before his, but he was the hardest one.”
Chamblee credits his win in that case in part to preparation and a strong cross-examination. “I’d read many of his previous depositions, and I knew if I didn’t get control of him during cross, I wouldn’t be successful,” Chamblee says. “A psychologist or psychiatrist is usually a more difficult cross than other types of experts—especially one with a strong personality.”
It made me recall some of the tough depositions I’ve undertaken of psychologists, psychiatrists, and others with medical training serving as an expert witness in civil litigation.
The article points out three key strategies an attorney should utilize when deposing these medical experts. The advice starts with questioning the credibility of the witness, wherein the interviewees advise to “never ask them about the patient directly,” but rather question them only about their report. This advice is quite sound, but it is advice I never follow. Instead, I like the physician expert to tell me what he knows about my client up front. That way, we can explore better the areas the expert doesn’t know, and how those areas might impact their opinions.
Second, searching for mistakes in the expert’s testing or even their biography. The attorneys that were interviewed candidly state: “A lot of those people misrepresent things on their resumé…” Boy, do they! Our firm has had a lot of experience, unfortunately, with experts of this type. They do not merely embellish CVs, they habitually overstate and misstate key details—often with the result of lending themselves more credence than they perhaps deserve.
Third, the article advises to do a thorough Daubert-focused review of the expert’s methodology and the foundation for their opinions. Again, sound advice, and this is one we follow for each deposition. You can no longer simply ignore Daubert in the state of North Carolina. You must prepare for the expert witness depositions (yours and theirs) with the expectation that a Daubert challenge will be coming.
While all three of these strategies are critical in any expert deposition, I’d like to take a slightly different tact, perhaps a more “unified” approach to deposing the expert witness. Indeed, I’d like to suggest that the different strategies are really all the same – and together they form a “reliable” witness, or a witness that is so damaged they should be considered “unreliable.” And these witnesses exist whenever there is expert opinion being offered. That is, the opinion spoken from the witness is either reliable, or unreliable, and in Daubert jurisdictions, keeping the latter out of evidence is a duty of the court.
Known-Knowns, Known-Unknowns and… oh no, not again!
In 2002, Donald Rumsfeld gave a humdinger of a response to a question during a DOD presser where he stated:
“Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don't know we don't know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.”
This answer gave late-night comedians and beltway insiders rich ground to till for days. Yet, lost in the humor is that of all the things Secretary Rumsfeld ever publicly said while serving in the Bush White House, this was probably the one he was most right about. I say he was “most” right about it because he did get the details somewhat wrong—but he got the kernel of the idea just about right.
The Johari Window
The “Johari Window” is a long-established heuristic developed by psychologists Joseph Luft and Harrington Ingham. It has been used widely in many self-help and therapy groups, but it is also utilized by intelligence professionals, project managers, and strategic planning professionals (not to mention—an early and ancient variant of the Johari Window was used by pretty much every western philosopher since Socrates). The Johari Window is a square divided into four quadrants (or two columns and two rows if you prefer).
The first column is labeled “known to self,” while the second column is labeled “not known to self.” We will discuss this further below, but it is very important before an expert deposition that the deposing attorney thoroughly examine who they are and what they know, before trying to develop a plan of attack for the deposition. Remember the Oracle’s advice: “know thyself.”
The first row of the quadrant is labeled “known to others” and the second row is labeled “not known to others.” It is easy to think of the four quadrants this diagram gives you, starting with the top left and moving clockwise, as A, B, C, and D.
Quadrant A is comprised of information that is known to you, and known to others (here, the witness is the only “other” that matters). The creators of the Johari Window call this window the “arena.” Quadrant B is what is not known to you, but known by the witness, which the creators call the “blind spot.” Quadrant C, that which is not known to you and not known to the witness, is called “truly unknown.” Quadrant D, or information that is known to you, but not known by the witness, is called the façade (indeed, it is “your” façade).
Using the Johari Window in Expert Depositions
Taking just quadrants A and B, anyone having deposed experts will immediately recognize that what a lot of skilled expert witnesses do is endeavor to make your blind spot as large as possible. They do this primarily with long-winded, meandering answers filled with technical language, but they also use skilled parsing to prevent disclosure of what they really think. An example is illustrative:
24 A. Repeat your question, please.
25 Q. The question was: Do those notes
2 contain your opinions and conclusions in this
4 A. Well, conclusions are evolving, but
5 they contain some opinions.
In other words, “Lawyer, my conclusions are whatever I say they are and I give opinions all the time.” In Johari Window terms, this witness wants to keep, at a minimum, all their conclusions in my blind spot. And by implication, this witness would also like to keep at least some of his opinions in my blind spot.
An answer like this should be an immediate red flag because it is intentionally evasive. They are literally trying to blind me, and as a result, the court. While Lady Justice must stay blind, our courts require that all evidence be seen, or heard, or otherwise witnessed. What this expert (a reputable and laudable member of the medical community, by the way) is doing is trying to warp the evidentiary process by intentional concealment. As an attorney, you simply are not allowed to tolerate such behavior.
During this verbal jousting, I like to make it clear to the witness that I am not his adversary and (unless being represented by a lawyer at the deposition) the defense attorney represents a side of the case, as do I, and we both, as well as the court, all need to understand fully what his opinions and conclusions are before we can try this case before 12 honest people. If he hasn’t formed certain conclusions yet, then let’s put those aside for now and focus on what this witness knows, then we’ll get to what he isn’t certain about later.
In my next article, I will focus my comments on how to further build the arena during your expert deposition and also how to attack from behind your façade.
Learn more about our Daubert challenge services here.
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