• Expert witness depositions are governed by Code of Civil Procedure §2034. Pursuant to sub-section (i) usually depositions of experts are taken within 75 miles of the courthouse where the action is pending unless the parties or Court determines otherwise. The expert must be paid a reasonable and customary hourly or daily fee for the actual time consumed in the deposition. Note, this excludes travel time. The party taking an expert's deposition must accompany the service of the deposition notice with a tender of the expert's fee based on the anticipated length of the deposition or tender the fee at the commencement of the deposition. If the deposition of the expert takes longer than anticipated, the party taking the expert's deposition is required to pay the balance of the expert's reasonable fee within 5 days after receipt of an itemized bill from the expert. The party designating the expert is responsible for any fee charged by the expert for preparing for the deposition and for traveling to the place of the deposition. This is all contained in Code of Civil Procedure §2034(i). If an expert asks for an unreasonable fee, you can obtain a Court Order setting a reasonable fee. A Meet and Confer to resolve the issue is required by Code of Civil Procedure 2034(i)(4).
• The adverse party must specify his or her expert witnesses pursuant to Code of Civil Procedure §2034 and the time limits set forth therein which are basically making a demand for exchange of information concerning expert witnesses not later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date. This is pursuant to Code of Civil Procedure § 2034(3)(b).
• As concerns your experts, I do not suggest you depose them. Why should you go to the expense of the expert's fee and the deposition reporter. However, sometimes it is essential that you depose your own expert. For example, vacation plans of the expert, illness or other reasons that the expert will be or may be reasonably anticipated to be unavailable for trial. In that event, you should consider videotaping the expert's deposition. However, you must give notice if you are going to take a video- taped deposition pursuant to Code of Civil Procedure §2025(l). That section gives extremely detailed rules and regulations on the type, manner and the proceedings of video-taped depositions. I suggest that you carefully, and if possible in advance of the deposition date, prepare your expert. However, often times and perhaps the usual practice is to meet the expert for approximately one (1) hour before your expert will be deposed to review the case, facts and materials with your expert. Of course you are responsible for the expense for your expert witness consultation fee. Deposing the Other Parties Expert. There is a division of beliefs on this subject. I personally do not take the depositions of the other party's experts. There are several reasons why I do not take adverse experts' depositions. In the first place, it is expensive and time consuming whereas the defense gets paid and has a large bankroll to pay for not only the court reporter and expert witness fee but also for counsels time of equal, if not primary importance is that I don't want to give the opposing party's counsel and experts a dress rehearsal of how I will conduct my cross-examination of the expert at the time of trial. When you take the deposition of the adverse party's expert witnesses, they not only see and hear how you are going to cross-examine them at the time of trial, but it also gives the defense lawyer at least three (3) additional opportunities to confer with the expert. Once to prepare the expert, secondly, immediately after the deposition to discuss how it when and how the expert performed, and thirdly, after the transcript is received, defense counsel can then confer once again with the expert to say for example, "You answered this question in this way, but I think we might want to change that approach at the time of trial and answer it in some other suggested fashion." Other capable lawyers on the other hand take the depositions of the adverse party's expert witnesses all the time in every case. They believe it is very beneficial to know what the adverse party's expert is going to say in advance of trial. You should weigh the pros and cons for your cases. If you do decide t take adverse party's expert deposition, I would at least cover the following subjects.
• Get the credentials of the expert on the record briefly if the expert has a Curriculum Vitae (commonly called "CV"); if the expert has a CV, be sure and attach it to the deposition. If there is no CV, go through the expert's credentials in considerable detail, including college and post-graduate education, any teaching the expert has done, any articles or other writings that have been published, authored, or co-authored by the expert and the type of practice the expert has and actively practices in at the time of the deposition and in the recent past.
• Ask what the experts job or task assignment was and who gave it to the expert. Then explore this in detail, including by and whom the expert was first contacted and subsequent contacts, what the expert was asked to look at, test or evaluate and when the expert was first contacted and when the expert did his or her work pursuant to the request.
• What materials has the expert received and reviewed? These should be listed in the deposition transcript so that there is no doubt of each item the expert has seen or reviewed in preparation for giving his or her opinion. Often times you will find a great deal of data that you have not seen but the expert was shown by opposing counsel. This frequently can be beneficial to your case. It certainly prevents you from being surprised at the time of trial.
• Ask the expert what opinions he or she has arrived at. Then make certain that the expert has no additional opinions. Go over each opinion in detail, leave nothing to chance.
• hen ask the expert the full basis for each opinion and the facts and documents upon which the opinion is based.
• Lastly, I would suggest that you ask the expert his or her compensation, how much has been paid, what future work the expert intends to do on the subject matter of the case. By then you should have a pretty good handle on everything the expert is going to say and do in the case.

Problem Depositions

Sometimes you will have an extremely hard-to-handle witness or opposing counsel. They can be adverse, hostile, abusive, profane, constant interruptions or other similar matters. In that case, the law allows you to make a Motion for Protective order and if need be ask the Court to appoint a Special Discovery Master to supervise the taking of the witnesses deposition or future proceedings in the case. This is authorized pursuant to Code of Civil Procedure §2025(i) which gives the Court at least 15 options to follow if you run into such problems. There is a Meet and Confer requirement to attempt a reasonable good faith informal resolution of each issue before you can get a Court Order. The Court will usually appoint a Retired Judge to serve as Special Discovery Master, the expense of which is usually $250.00 an hour to be borne equally between the parties. If you have problems, it is well worth it to get a Special Discovery Master. The nonsense and problems created by the abusive witness or lawyer is promptly solved when a Retired Judge is sitting in on the proceedings. Conclusion There are three (3) words that sum up how to win words that sum up how to win plaintiffs' cases, they are: preparation, preparation and preparation. Depositions are a key ingredient in any case. Depositions prove or disprove facts and discover important evidence before trial, thus eliminating any surprise. Depositions are part of a carefully thought out discovery plan which also includes form interrogatories, special interrogatories, Request for Production of Documents and expert witnesses. Depositions are an important tool in winning your client's case.

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