Properly used, the questions and accompanying techniques shown here could be instrumental against a hostile "expert" witness (like biased custody evaluator), diminishing the importance of their testimony or getting it thrown out altogether. Print this out and give a copy to your attorney. Five "Silver Bullet" Questions for Opposing Experts Article of the week from Lawyers Weekly USA, September 6 By Christa Zevitas
During the first 10 of his 25 years as a litigator, John F. Romano developed what he calls "five silver bullet questions" to use when deposing opposing expert witnesses. For the past 15 years, Romano has used these questions every time he has deposed an opposing expert, and he says that they never fail to get him information that bolsters his case.
Romano is former head of the Academy of Florida Trial Lawyers, the Southern Trial Lawyers Association, ATLA's criminal law section and the Washington, D.C.-based National College of Advocacy. He has lectured nationally on trial advocacy, litigation techniques and demonstrative evidence, is the author of the textbook Strategic Use of Circumstantial Evidence and currently edits The Trial Lawyer.
Romano is a fellow of the International Academy of Trial Lawyers in Minneapolis. He spoke to Lawyers Weekly USA from his office in Lake Worth, Fla.
Can you explain the overall goal of your silver bullet questions?
They usually either give you the answers you want so that you can use those answers in front of a jury or they lead you to information that you can later develop and use during trial. They also help you settle cases in your client's favor because the opposition sees what's happening and understands that their risks are, little by little, increasing.
The risks increase because these questions generally:
Establish that an expert is biased.
Put a wall around an expert's testimony.
Weaken the credibility of the opposition's expert.
Strengthen the credibility of your own expert and/or police witnesses on your side.
What are the five questions?
What do you perceive as your purpose and function in this case?
Assume your opinion is wrong or invalid. What steps would you go through to analyze and assess the opinion to find your error?
What further work do you intend to do and what further work have you been asked to do for this case?
Do you have any criticism of the police or of my expert(s) in this case in terms of their methodology or techniques?
Have you made any credibility judgments as part of your analysis in this case?
Could you explain what the purpose of each question is and give some examples of how they've helped you win cases or settle cases in your favor?
Absolutely. Let's start with, "What do you perceive as your purpose and function in this case?" When I ask this question, I'm trying to:
Establish the expert's bias; and
Limit the scope of his or her testimony.
If, for example, I file a personal injury case in which my client has a lower back injury from an auto wreck, the insurance company's lawyers will hire a doctor to examine my client. From the start, that doctor knows that his or her role is to minimize the plaintiff's injuries - and he or she will do this. Yet when I ask about his or her purpose in the case, a typical response by a defense examiner is, "My function in this case is to give an independent and objective evaluation of the plaintiff's injuries." So I then go on to explore what the doctor alleges is an "independent and objective" evaluation by asking questions such as:
Isn't it true, doctor, that in the last calendar year you earned in excess of $800,000 performing defense exams?; or
Isn't it true that approximately 65% of your practice now involves conducting defense exams?
Once I've established that the opposing expert is not objective after all, I move on to putting a wall around that doctor's testimony. Let's say it's a medical malpractice case and a doctor says, "I'm here to testify on the issue of causation only." I will then ask something like, "So you are not here to testify on whether or not there was a breach of the standard of care?"
The response I typically get is, "That's correct, Mr. Romano." This means that I've eliminated that expert as a witness on the issue of the standard of care and effectively narrowed the scope of his testimony.
What are you trying to do with your second question? ('Assume your opinion is wrong or invalid. What steps would you go through to analyze and assess the opinion to find out your error?')
First of all, I should tell you that lawyers will virtually always get an objection to this question in deposition, but the witness must answer the question regardless.
With this question, I'm aiming to establish the errors in an expert's analysis: I have yet to see an expert witness in a deposition go through the same steps in responding to this question that he originally went through in his initial assessment.
Could you give an example of how you exposed the flaws in an expert's analysis by using this question?
Sure. I recently deposed an engineering expert in a product liability case in which a defective mountain bike came apart when my client rode over a 4-inch curb. When the bike came apart, my client catapulted into the air, landed on his head and ended up with a brain injury.
After the engineer testified that the bike wasn't defective due to manufacturing, I asked him to go through the steps which led him to that conclusion. He spent an hour or two doing that.
Then I said, "Sir, I'd like you to assume that your opinion turns out to be wrong and that it's true that the welds were inadequate or ineffective. Now that you assume that your opinion is wrong, take me back through all of the steps you need to go through in order to figure out where you went wrong."
The witness spent four hours going through those steps - more than twice as long as it took him to make his original conclusion. Because he was much more thorough when assuming his opinion was wrong, I was able to show that he didn't go from A to Z in establishing his original opinion. This, in turn, showed his bias for the bike manufacturer.
In your third question - ('What further work do you intend to do or have you been asked to do for the case?') - are you attempting to establish that an opposing witness is biased?
No. What I'm trying to demonstrate is that an expert has prematurely arrived at an opinion when he still needs to do more evaluation. For example, I recently had a case in which my client, a backseat passenger in an auto wreck, suffered a severe knee injury from the accident. She wasn't wearing her seatbelt at the time of the accident, but we were arguing that whether or not she had her seatbelt on was irrelevant because her knee was only two to three inches away from the rear of the passenger seat. The defense's accident reconstruction expert testified that if she had been wearing her seatbelt, she wouldn't have suffered a knee injury. But when I asked the expert if he intended to do any further work on the case, he said he wanted to:
Measure the distance between the back seat of the car and the passenger seat with someone of the plaintiff's height and weight; and
Find the weight of both the plaintiff's and the defendant's vehicles.
I then asked the expert if he considered those additional factors to be important ones to consider in arriving at a final opinion. He answered "yes," and I was able to show that his opinion was flawed because it relied on insufficient data.
Does this question work particularly well in personal injury cases?
Yes, but it can work in almost any kind of case. I've used it in everything from criminal cases to business tort suits.
Let's move on to your fourth silver bullet question. ('Do you have any criticism of the police or of my experts in this case in terms of their methodology or techniques?') What are you attempting to prove when you ask this?
The purpose of this question is to build the credibility of my expert or a police officer that I intend to put on the stand. In a recent vehicular homicide case I tried in Fort Lauderdale, the defense was implying that the police officer could have done a better job in investigating the homicide. I was arguing that the police officer did an excellent job, and during deposition I asked one of their experts if he had any criticism of the officer's investigation.
That expert said, "No" - and in this case what that "no" meant was that they couldn't argue anything but that the police officer had done an excellent job at the scene.
That helped me position the case. Originally, it was going to trial on the issues of both liability and damages; however, because their expert did not fault the police, they ended up admitting liability and the case was tried on damages only.
What are you aiming to prove when you ask your fifth silver bullet question? ('Have you made any credibility judgments as part of your analysis in this case?')
Again, I am trying to establish that an opposing expert is biased towards his or her side.
The simple truth is that most experts make credibility judgments. If the witness says that he hasn't, it will be very difficult for him to explain a number of his conclusions or findings without conceding that he made credibility judgments in order to come to those conclusions. On the other hand, when the witness admits to making credibility judgments - especially about your client - you have an opportunity to explore them in detail during deposition.
For example, I had a personal injury case for which the defense hired a doctor to examine my client. In his report, the doctor wrote that the plaintiff was exaggerating her symptoms solely for the purpose of secondary gain. That meant that the doctor had chosen to attack my client's credibility based on his own credibility judgment, when he should have been looking at medical tests and diagnostic studies in establishing his opinion.
That case settled in our favor for $340,000.
Should you ask these five silver bullet questions in the order you just presented them, or should you mix them up?
Although it obviously is important for you to figure out what questions need to go in which particular order, it's a good strategy to not be predictable. Don't ask questions in the same order and in the same way.
Do most attorneys use questions similar to these when deposing opposing experts?
No, they typically don't. Lawyers generally have problems in doing the right thing in deposition. I continue to hear lawyers say things such as "We'll get over there and play it by ear" and "Well, let's just see how it goes" as they are about to go into a deposition. These types of remarks mean that an attorney isn't prepared and doesn't have a clear strategy and a clear set of goals in mind for taking the deposition.
Why do you think this is?
Lawyers commonly make the mistake of thinking that a particular deposition is less important than other, "more important" depositions in their case. But the trial advocate must consider every deposition as critical to the case. This is true even when, for example, someone is only being deposed to lay a foundation for a single piece of evidence. Also, too many lawyers have the nonchalant attitude that they've taken 200 or 300 depositions during their career - they therefore think it's okay to shoot from the hip and go into depositions without properly preparing for them. And it's not okay because there is no such thing as a run-of-the-mill deposition.