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Facing the 'Expert'

By Elliott B. Oppenheim

Although any trial lawyer would like to be Atticus Finch in “To Kill a Mockingbird” ' to make the world's most eloquent argument to a jury on the client's behalf ' the reality is that a trial creates a situation in which the risks of losing, in general, do not outweigh the safety to be found in a negotiated settlement. In effect, both parties win when a case settles. A methodical deposition that has been carefully prepared serves the client's interests, since it favors a controlled settlement.

If you want to settle cases or to win at trial, the “crux move” in medical negligence litigation is the deposition of the opposing medical expert witness. This article provides the theory you need to conceptualize the deposition, to decide what you need, and to create an intricate, yet effective method that will pin down the opinions and, simultaneously, allow weaknesses in the opposing case theory to surface. This type of a deposition will encourage settlement, or, if the case does go to trial, the trial lawyer will have the best ammunition. These techniques may be applied in any deposition for any witness.

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