Discovery Depositions

Excerpt from Chapter 10: Pre-Trial Tasks and Issues

Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys
by Michael L. Brookshire and Stan V. Smith


If the defense attorney decides to proceed with a discovery deposition on the plaintiff’s economist, he must decide upon his primary reason for requesting the deposition.

One reason is to better understand how the economist has performed his calculations. This aids in the evaluation of settlement proposals, in preparation for cross-examination and perhaps, in the decision to counter with another economist at trial.

Another rationale — which may assume primary importance in a discovery deposition — is to intimidate the plaintiff’s economist and belittle his estimates. This may be sensible if, by lessening the credibility of the expert in the eyes of the plaintiff’s attorney, the defense might obtain a more satisfactory settlement before trial.

Obviously, the nature of the deposition will be affected by the reason for the deposition. If simple understanding is the central theme, the defense gains the advantage of not tipping its hand on lines of attack at trial.

Where a more aggressive approach is utilized, the plaintiff’s economist may learn more than the defense attorney about how to prepare for cross-examination.

Whatever the thrust of the defense, we recommend that the plaintiff’s economist be asked to state all major assumptions and make clear how these assumptions are converted into calculations and then loss estimates.

Ask the economist if he agrees with— and supports — all of his assumptions. Ask him about related publications and related testimony in the past year or so. These types of questions provide data needed by the defense attorney and economist in preparing for cross-examination and may yield a bonanza.

For example, the economist may say that he has problems with a certain assumption given to him by the plaintiff’s attorney. Or, after research, you may find that he repudiated the offset technique in recent testimony but is using this technique in your case.

Lines of inquiry are addressed in more detail in the next chapter. One overriding concern in both deposition and cross-examination at trial, however, is the defense attorney’s level of sophistication in both formulating questions and understanding the responses. Even before the discovery deposition, the defense attorney may need the assistance of more experienced attorneys, the Defense Research Institute and its publications, and his own economic expert.


The plaintiff’s attorney (to comply with discovery rules), will usually have his expert bring his entire file and perhaps trial exhibits to the deposition. The economist should assume that the defense attorney will take his file and review it — page by page — as part of the deposition.

One tactical issue for the plaintiff’s attorney and economist is where the economist should be glib and concise in his answers at deposition or be more forceful in responses as he might be at trial.

Such “forcefulness” at trial might include pointing out that the defense has made a very minor point, or elaborating all counterpoints to a line of argument, or showing countervailing reasons in response to contentions that his economic estimate is too speculative or too high.

An advantage of saying a minimum in a deposition is that one volunteers the least information possible to help the defense prepare for cross-examination. The disadvantage is that the economist may not boost the settlement position of the plaintiff’s attorney.

This pro and this con are reversed as the plaintiff’s economist becomes more forceful in responding to questions by the defense.

Most experienced economic experts feel that they gain more than they lose in discovery depositions, unless their assumptions are questionable, or they have made outright mistakes. Even when the defense economist asks straightforward questions to understand the economic report, the economist will pick up indications of lines of inquiry at trial.

Let us now assume that the defense attorney has listed his own economic expert, who is subject to discovery. Assuming that the case is worth the expense, the plaintiff’s attorney is usually well advised to depose this potential witness.

He should be asked about his own past articles and testimony, and these should be researched. He should be asked to detail every criticism which he has of the assumptions, techniques, and estimates of the plaintiff’s economist. If possible, he should be forced into the posture of making his own estimate of economic loss, and he should be asked if he has made his own calculations.

A defense economist will probably not be used to testify at trial, but his deposition will greatly aid preparation by the plaintiff’s attorney and economist. If the defense economist does testify, the deposition and follow-up research, may well show him criticizing assumptions and techniques which he has used before.

Finally, discovery depositions have led to the defense economist being subpoenaed by the plaintiff’s attorney for testimony that reinforces the estimates of the plaintiff’s economist.


For More Information…

Read additional sections from Chapter 10 of The Practice Book for Plaintiff and Defense Attorneys:


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