Expert Deposition Checklist

Generic Expert Deposition Checklist

After Daubert, counsel deposing experts will want to prepare highly specific lines of questioning based on the detailed content of the expert's report. This checklist is offered only as a generic starting point. The author solicits suggestions for additional points to include.

I. Personal information

a. Name

b. Home address

c. Business address(es)

d. Current employer(s)

i. Identity of employer

ii. Nature of employer’s business

iii. Employer’s affiliations with parties

iv. How long employed there

v. Job title(s) and duties

vi. Organizational chart (how many personnel, doing what)

vii. Expert’s reporting relationships (up & down)

viii. Usual hourly rate billed by employer for expert’s services

ix. Same, paid by employer to expert

x. Any document retention policies?

1. Any document retention policies re litigation matters?

e. Member of any professional organizations?

II. Education

a. For each college and graduate institution:

i. Years attended

ii. Major or concentration

iii. Degree

iv. Subject of thesis or dissertation

v. Any courses in __________?

vi. Honors, prizes, fellowships, etc.

vii. Teaching work while attending (as graduate instructor, etc.)

b. Professional seminars, continuing education, etc.

III. Licenses and certifications

a. Issuing authority

b. Any tests or training?

c. Dates issued

d. Periodicity of renewal

e. Requirements for renewal

f. Any disciplinary actions, revocations, etc.?

IV. Employment history

a. For each position:

i. Identity of employer

ii. Nature of employer’s business

iii. Employer’s affiliations with parties

iv. How hired

v. Dates employed there

vi. Job title(s) and duties

vii. Organizational chart

viii. Reporting relationships

ix. Nature of compensation (salary, etc.)

x. Why left

V. Publication history

a. Does expert’s report list all publications in last ten years?

b. Which publications from list are germane to expert’s work in this case?

c. Any previous publications (before the last ten years) germane to expert’s work in this case?

d. For each publication identified as pertinent:

i. Did any other publisher or journal reject the publication?

ii. Was the publication peer-reviewed?

1. By whom?

2. Any comments during the peer-review process?

3. Any revisions resulting from the peer-review?

iii. Drafts retained?

iv. Anything in the article that the expert would now want to change or revise?

1. If yes, has author done that? If not, why not?

v. Identification, qualifications, roles of co-authors and other persons who assisted

vi. What generated expert’s interest in area?

vii. How would expert summarize the publication’s thesis or content?

viii. Further research:

1. Did publication identify the need for any?

a. Why or why not?

2. Was there, in any case, a need for any?

a. Why or why not?

3. Has any needed further research been done?

a. If yes, identify

b. If no, why not?

ix. Does expert know how frequently publication is cited?

x. Has anyone requested right to reprint?

xi. Is expert familiar with any literature expressing contrary views or reaching contrary findings?

1. Citations

2. How and why does expert differ with literature expressing contrary views?

xii. Any compensation for authoring the publication?

VI. Career as expert witness

a. Does expert’s report identify all cases where expert has testified at trial or by deposition in last four years?

b. Any other cases in last four years where expert prepared report but did not end up testifying?

c. Any previous cases (prior to the last four years) similar to this one?

d. For each case:

i. Subject matter of case

ii. Subject matter of testimony

iii. For whom did expert testify?

iv. What law firm retained expert?

v. Did expert prepare report?

vi. Who assisted?

vii. Was expert deposed?

viii. Did expert testify at trial?

ix. Any motions to exclude expert’s testimony?

x. How was expert compensated?

VII. Expert’s retention

a. Date retained in this case

b. Persons making initial and subsequent contacts to retain expert

c. Compensation arrangements

d. Expert’s understanding of expert’s assignment

VIII. Expert’s opinions

a. What opinions has expert formed?

b. For each opinion:

i. Who assisted expert?

ii. What advice or assistance did counsel offer?

iii. What data did expert review?

iv. How did expert decide what data to review?

v. What data did expert end up relying on?

vi. If any data were not used, why?

vii. Does report include (not just “list”) all data considered?

1. If not, were data retained?

viii. Where did expert obtain data, and who assisted?

ix. What literature did expert review?

x. On what literature does expert place reliance?

xi. For each publication on which expert relies:

1. Who published?

a. If a trade or industrial organization, e.g., explore its interests and constituencies

2. Can expert summarize pertinent information, theory, or methodology from publication? How did publication assist expert?

3. Is expert familiar with authors’ reputation, experience, etc.?

4. Was publication peer-reviewed?

xii. Can expert state every methodology relied upon in forming opinion, whether or not covered in literature just described?

xiii. For each such theory or method:

1. Is the expert an expert in it?

a. Any education, experience, etc.?

2. Can expert identify any literature supporting it?

3. Can expert summarize method or theory?

4. Has method or theory been tested?

5. Can method or theory be falsified (and how)?

6. Does method or theory have a known error rate?

7. Is method or theory generally accepted?

8. Identify any standards controlling the method’s application

9. Is expert aware of any dissenting views?

a. Citations to literature

10. How would expert respond to dissenting views?

11. What is the context in which the theory or method is usually applied?

a. Litigation contexts

b. Others

12. Are there certain kinds of question that this theory or method cannot answer (e.g., causation, fault)

xiv. Has expert ever done work in this area outside the litigation context?

1. “Well, sir, how would you define [this area]?”

xv. Would any theories or methods not used by expert be potentially pertinent?

1. Why did expert not employ these?

xvi. Does report recite every step taken by expert to reach his or her opinion? With enough specificity that another expert in same field could duplicate results?

xvii. Does report contain complete statement of all bases and reasons for opinion?

xviii. Were there any false trails or abandoned approaches?

xix. Anything in the report concerning this opinion that the expert would want to change or revise?

xx. Any further research desirable?

xxi. What is the expert not opining on (liability, causation, etc.)?

IX. Expert represented by counsel at deposition?

X. Communications with attorneys

a. Statement of expert’s assignment

b. Any restrictions on assignment

c. Any communications re Daubert?

d. Documents supplied to expert

e. Involvement of attorneys in drafting opinion

f. Deposition preparation