Often attorneys fail to seek advice from an expert for consultation purposes prior to a deposition, only to have an expert later review the deposition transcript, and realize that relevant questions were not posed at all during the deposition. At this point, the attorney has the option of deposing the party for a second time, thereby incurring additional costs incident to depositions, or the attorney may have to overcome these gaps at a later time, typically during trial. Problematic situations such as these may be avoided through realizing the availability of cost effective alternatives, such as using an expert to provide support, remotely, during depositions.
In a recent publication in the Florida Bar News, entitled “Take your Doctor to your Depo in your Laptop,” Attorney James W. Clark discusses how use of technological advancements allows him the benefit of an expert who “is listening in and typing real-time questions that Clark immediately reads on his laptop computer.” Clark goes on to explain how having an expert available at your side can become a “gotcha moment.” Through this manner of expert assistance, attorneys are able to overcome obstacles presented during often unpredictable circumstances that may arise during depositions, but in a more affordable manner. In describing opposing counsel’s reaction, Clark states “often they call a break when we ask the right question.”
Attorneys have long used experts for the purpose of consultation prior to attending a deposition. These experts offer valuable suggestions regarding the types of questions that an attorney should ask, or the potential questions that may be presented to the individual being deposed by opposing counsel. However, what happens if the deposition does not proceed as planned, or at least within the limits discussed during an expert consultation? Sure, you can ask for a break and call your expert witness; but will you accurately be able to relay the events that just occurred in a manner that will allow your expert to provide you with useful feedback? Moreover, will you be able to predict additional matters that were not previously contemplated, and therefore not presented to an expert during consultation. Typically the answer is no. In situations like these, it may be worthwhile to consider fully involving the expert with the deposition, which could enable the expert to provide more useful and accessible service. Although some attorneys may shy away from this notion due to cost, through the use of technological advancements, attorneys can realize cost-effective alternatives that will provide the benefit of readily available expert assistance.
By: Alicia McKnight, J.D.