What Makes Expert Depositions Different From Other Depositions?

If you read my previous blog about depositions, you have a working familiarity with how sworn oral testimony works. But you may have heard the term “expert witness” bandied about and wondered, what happens if someone wants to take an expert deposition?

What Is an Expert?

Illinois Supreme Court Rule 213 governs classification of witnesses. It sorts them into three major categories:

• Lay Witnesses (ISCR 213(f)(1)): These are just ordinary people with no specialized knowledge. They may be the people involved in the auto crash themselves, maintenance workers at the store where the person allegedly slipped on a wet floor, or witnesses to an auto crash.
• Independent Expert Witnesses (ISCR 213(f)(2)): These witnesses are defined as “a person giving expert testimony who is not the party, the party’s current employee, or the party’s retained expert.” They are often treating physicians for the injured person.
• Controlled Expert Witnesses (ISCR 213(f)(3)): These witnesses are the opposite of (f)(2) independent experts. A witness in this category IS the party, the party’s current employee, or the party’s retained expert. Common examples are an “expert doctor,” structural engineer, biomechanical expert, or similar person who is equipped both with specialized knowledge AND also is retained and paid by the party presenting the expert.

The rule goes on to specify that a party intending to call any of these types of witnesses must disclose in writing exactly what they will testify to and the bases upon which they rely.

When and Why Are Experts Deposed?

Typically, the expert is deposed, so that the party who plans to call the expert, but has not disclosed the witness, can learn what the expert will say at trial. The deposition provides a detailed explanation and record of what this witness will state in the trial, so that any deviation can be met with attempted impeachment.

The Illinois state court system tightly controls cases and forces attorneys to “do something” every 30-60 days typically, such as take depositions of all (f)(2) witnesses by such and such a day. The usual deposition order is lay witnesses first, then independent expert witnesses, followed by controlled expert witnesses.

How Does an Expert Deposition Work?

Depositions of experts are very similar, yet very different, from “run of the mill” witness depositions described in my earlier blog.

The process is similar, including that the expert witness is sworn and asked questions. But how the depositions differ is significant.

First of all, experts are expensive. Very expensive. If you are planning to call your client’s treating orthopedic doctor for a deposition, you can expect to pay upwards of $1,000 an hour for that testimony, and much more for a trial appearance or videotaped evidence deposition.

Second, expert depositions involve detailed technical documentation and lots of jargon. You often are asking a doctor to go through the patient’s entire chart and explain how it applies to the patient’s injuries.

Finally, the key part of any expert’s deposition is the opinion testimony. The person asking the questions wants to know what opinions the expert has and whether they are based upon a reasonable degree of medical certainty. For example, a doctor who testifies that the patient’s shoulder surgery “might be” related to the auto crash is not going doing any favors for the patient’s case. In contrast, an expert who testifies it is his or her opinion (to a reasonable degree of medical certainty) that the labrum tear and surgery were definitely caused by the car crash will win the day in court (or cause the case to settle).

The cost of a deposition varies. For example, consider a car crash case. If the defense attorney wishes to take the deposition of the doctor who operated on the plaintiff’s shoulder, the defense attorney will have to pay the doctor’s going rate and pay for a court reporter. That can easily cost $2,500 and often requires travel to the doctor’s office. And some doctors only do depositions at 7 a.m. or late in the evening or on weekends.

If the plaintiff calls a controlled expert for a video evidence deposition (in place of an appearance at trial), the plaintiff’s attorney would have to pay the expert for all preparation and testimony, pay a videographer, and pay a court reporter. Again, not cheap.

Many experts literally are hired guns that the insurance carrier (in the case of a defendant) or the plaintiff’s attorney hires specifically to testify to support a particular point. Medical malpractice cases are the perfect example and can be quite complex. The plaintiff’s attorney might need to call a cardiologist, radiologist, catheter specialist, and several other hired guns to opine that the failure to diagnose the aortic aneurysm caused the patient to suffer major neurological damage. Considering that many experts charge upwards of $2,000 an hour for testimony and review of documents, it is a very risky and costly proposition to bring forth such a case.

Contact Chicago Personal Injury Lawyer Stephen Hoffman

As in all cases involving injury and potential liability, immediately get medical treatment, report any car crash to police and your own insurance company, and contact a personal injury lawyer.

If you've been injured in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has nearly 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles personal injury claims on a contingency fee basis, which means you don’t pay anything upfront and he only gets paid if you do. Don’t wait another day, contact Stephen now.