While retained experts are often professional witnesses, defense counsel will likely not prepare experts such as Human Resource managers to withstand a well-executed cross-examination at deposition. So it’s difficult to suggest that it is not part of the everyday trial work that it should not be covered in the costs.”).) his is what is the accepted mode of trying cases to us. This is a reality of how cases are presented to. (2012) 203 Cal.App.4th 507, 514-515 (authorizing the recovery of the cost of editing a video deposition, since “things have changed from the days of just reading dry transcript. Superior Court (1997) 16 Cal.4th 1101, 1107 (recognizing video depositions capture verbal and nonverbal responses) Martinez v. In addition, to the extent that a video deposition reduces tedium, the fact-finder’s concentration and attention will be enhanced, again to the benefit of the decision process. Video depositions can markedly increase accuracy and trustworthiness. witness’s demeanor reflected in his motions, expression, voice inflections, etc., give the fact-finder a unique advantage in evaluating evidence, resulting in appellate courts granting greater deference to such findings. Which is more powerful: forcing a witness on the stand to watch his video deposition (or that of some other witness), on display for the judge and jury to see, squirming in the witness chair, seeing a fearful/pained/shameful/arrogant/uncertain expression on his face, hearing his condescending/angry/tearful tone of voice, and waiting out the silent, pregnant pauses while the deponent racks his brain for the “right” answer or, reading words to the witness from white pages in a booklet? Video-recording expert depositions is key The strategic designation of experts can provide great avenues for cross-examining other witnesses, so make sure you identify all potential experts in the initial expert designation. In the medical-malpractice context, perhaps you elicited key testimony from the Chief Nursing Officer on hospital practices or procedures. You should designate any other witness from whom you may wish to elicit expert testimony as a non-retained expert in your expert designation, including any person(s) most qualified.įor example, in an employment case, the Human Resources or other management personnel who authorized and/or ratified on your client’s termination should be identified as a non-retained expert. But remember that “experts” need not be limited to retained experts and treating physicians or other healthcare providers. Identifying your own retained expert(s) and your client’s treating doctors in the initial Section 2034.260 designation is a no-brainer. The strategic use of expert deposition at trial requires ensuring you identify all of your potential experts in advance. Preparing to use an expert deposition at trial starts in the discovery phase Understanding and applying the applicable rules, with an emphasis on using video deposition testimony for maximum impact, is critical to ensuring the success of your trial strategy. Various sections of the Code of Civil Procedure relating to experts and discovery provide the foundation for the strategic use of an expert deposition at trial (all Code sections refer to the Code of Civil Procedure unless otherwise identified). But the effective use of an expert deposition requires advance planning. Using expert deposition testimony at trial can be a powerful tool in presenting and winning your case.
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