Heads or tails? Who should go to the deposition, support staff or the expert?

In a substantial antitrust case, the plaintiff’s economic expert, with impeccable credentials, worked as an associate of a consulting firm with capable support staff. A considerable amount of work was accomplished with commensurate fees. However, the expert provided supervisory services and never became acquainted with important facts about the industry, the firm being defended, or the plaintiff. Although the expert’s report contained important facts, some of the more obvious facts were not included in the report.

The defense counsel cleverly set up the expert during the early part of his deposition by obtaining an agreement that a firm’s scope of products is critical to its success. Without a full scope of products in the market, any firm could not expect to grow market share. Later in the deposition, the defense counsel asked the expert to list the plaintiff’s scope of products. Not being familiar with the facts, the expert guessed, but guessed wrong. The expert had already constructed a written opinion but was admittedly wrong in key facts. The expert failed to bring to the case key facts that had to be known before an opinion could be formed. Support staff knew these facts well, but the expert was too unfamiliar. Overall credibility was lost.