How many times have you noticed an expert witness for deposition, only to be told you've got to pay their fee in advance, failing which, they say, they aren't coming. As Jim Garrity explains, it doesn't have to be that way. Listen in and learn why prepayment isn't required and how to properly avoid advance payment. After all, those prepayment demands are often excessive, don't explain how the fee was determined, and of course don't guarantee the expert will even qualify as such, much less offer admissible testimony. And we've got a wealth of research for you in the show notes.

SHOW NOTES

Evans v. Home Depot USA, Inc., Case no. 2:25-CV-451-SPC-KRH, 2026 WL 1837154 (M. D. Florida June 25, 2026) (plaintiff’s treating doctor, a non-retained expert, was set for one hour deposition, and demanded prepayment of $3,000 for the deposition; held, prepayment is generally not required, “so lack of prepaid fees would not justify refusing to attend the deposition after proper service of a valid subpoena;” further outlining the process to address a treating physician’s potential nonappearance at a deposition, asking whether the deposition was subject to the courts subpoena power, and if so, whether the defendant had issued and served the subpoena, noting that the court then need not intervene until (a) the physician seeks to quash the subpoena or fails to appear, and (b) the defendant moves to hold him in contempt for failing to appear to deposition)

Johnson v. Spirit Airlines, Inc., No. CV 07-1874FBJO, 2008 WL 1995117, at *1 (E.D.N.Y. May 6, 2008) (“The pertinent rule thus teaches that once Dr. Seldes has actually “spent” time responding to Spirit's questions at the deposition, he may then bill Spirit for a “reasonable” fee for that amount of “time.” Dr. Seldes therefore may not insist on advance payment, and may not set a flat fee before he knows what he will be called upon to do; he may instead charge only a reasonable hourly fee. I will not predict in advance what reasonable hourly fee Dr. Seldes may choose to request, but should a dispute arise, I will of course defer to the persuasive authority of cases such as the Garnier decision cited above and the precedent on which it in turn relied. See id. at *3-*4 (describing a range of reasonable hourly rates below $500))

Conte v. Newsday, Inc., No. CV 06-4859 JFB ETB, 2011 WL 3511071, at *3 (E.D.N.Y. Aug. 10, 2011) (“The rule and the case law makes it clear that the parties seeking court intervention to determine a reasonable fee for an expert deposition should do so retrospectively—that is, after the deposition has taken place. The rule clearly contemplates that a court order will be issued subsequent to the deposition, as it requires a court to order payment of a “reasonable fee for time spent in responding to discovery”)

Tennant v. Handi-House Mfg. Co., Case No. 3:16-cv-1276-J-25MCR, 2017 WL 11105252 (M. D. Fla. Nov. 20, 2017) (Defendant moved for, among other things, order deferring payment for deposition of plaintiff’s treating physician, who canceled the deposition because he did not receive the $3,300 payment he demanded for his two-hour deposition; held, Defendant’s request to defer deposition fees of the treating physician granted, with the court “finding that prepayment of expert witness deposition fees is inappropriate under the Federal Rules of Civil Procedure;” noting that Federal Rule of Civil Procedure 26(b)(4)(E) “does not require the prepayment of expert deposition fees; further noting that the parties agreed that the issues presented are governed by the expert fee rules, implying that a treating physician may qualify as an expert under the circumstances); Court also noted that Fed. R. Civ. P. 26(b)(4)(E)(i) says that unless manifest injustice would result, the court must require that the party seeking discovery pay the expert a reasonable fee for “time spent” in responding to discovery; court noted that the deposition had not yet taken place, and so seemed to emphasize that it was premature to determine the reasonableness of payment because the provision talks about “time spent” and the doctor had not yet been deposed”)

Regions Bank, etc. v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 WL 4935694 (M.D. Fla. Aug. 18, 2025) (Bank filed Motion to Defer Payments to Experts or to Determine Reasonableness of Expert Charges, where defendants demanded that the bank pay an invoice from TASA Group in the amount of $10,325.29 in advance of the banking expert’s testimony, failing which the witness would not appear; bank argued that the court should defer reimbursement obligation pending the outcome of the case, in pending submission of supporting data, arguing that the Committee Notes to the 1970 amendments to Rule 26 say that the court may issue an order to pay fees as a condition of discovery, or it may delay the order until after discovery is completed.; Court noted that “other courts have denied request for advance payment because Rule 26 (small B) (4) (E) does not require it,” citing cases from Wisconsin and California for the proposition that, unlike ordinary witness fees, no rule requires that an opposing expert deposition fees be tendered to the witness in advance)

Regions’ Motion to Defer on Payment of Experts, or alternatively, to Determine Reasonableness of Kaplan Parties’ Expert Charges and Supporting Memorandum of Law (CM/ECF Doc. 435) Regions Bank, etc. v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 WL 4935694 (M.D. Fla. Aug. 18, 2025)

Defendant Marvin I. Kaplan’s Motion for Approval of Expert Witness Fees and Expenses (CM/ECF Doc. 436), Regions Bank, etc. v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 WL 4935694 (M.D. Fla. Aug. 18, 2025)

Parkland Venture, LLC v. City of Muskego, No. 09-C-0972, 2010 WL 4723411 (E. D. Wisconsin November 15, 2010) denying plaintiff’s motion requiring the defendants to pay reasonable fees to the plaintiff’s experts in advance of taking their depositions; court noted that while rule 26(b)(4)(C) provides in relevant part that in less manifest justice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent responding to discovery, rule does not say that experts fees must be paid in advance of the deposition absent agreement to do so, and pointing out that unlike ordinary witness fees, no rule requires that an opposing expert’s deposition fees be tendered to the witness in advance)

Kramer et al. v. Hartford Insurance Co. of the Midwest, Case No. 8:12-cv-01824-T-17AEP, 2013 WL 12155927 (M. D. Florida April 30, 2013) (court granted Defendant’s Motion to Compel Deposition Testimony of Dennis James, an expert, finding “that prepayment of expert witness fees, including Mr. James’ expert witness in this action, is inappropriate under the Federal Rules of Civil Procedure. The court noted that while Rule 26(b)(4)(E)(i) says that in less manifest injustice would result, the court must require that a party seeking discovery pay the expert a reasonable fee for “time spent” [emphasis added], the Advisory Committee Notes (1970 Amendment) to Rule 26(b)(4) authorize a court to require the payment of fees and expenses as a condition of discovery, and also to delay the order until after discovery is completed. Thus, the court ordered the deposition to proceed but set a payment deadline for his fees within 50 days of the date of his deposition. The court emphasized that - while rule 26(b)(4)(E)(i) “is silent as to exactly when an expert will be paid after responding to discovery, the Court finds that a degree of reasonableness is inherent in the Federal Rules of Civil Procedure. In the circumstances of this case, a payment deadline of 50 days was reasonable.)

Harris v. Costco Wholesale Corp., 226 F.R.D. 675, 676–77 (S.D. Cal. 2005) (plaintiff’s counsel abruptly terminated defense deposition of plaintiff’s expert because Defendant would not pay expert witness fee at that time; court, rejecting the manner of termination is improper, said of Rule Fed.R.Civ.P. 26(b)(4)(C) that while experts must be paid absent manifest injustice, “The rule does not state, however, that the expert's fees must be paid in advance of the deposition absent agreement to do so. To the contrary, “[u]nlike ordinary witness fees, no rule requires that an opposing expert's deposition fees be tendered to the witness in advance… Because there is no rule allowing a party to terminate a deposition for the failure to pay opposing expert witness fees in advance, Plaintiff's counsel was wrong in doing so in the instant case)

Conte v. Newsday, Inc., No. CV 06–4859 (JFB) (ETB), 2011 WL 3511071, at *2 (E.D.N.Y. Aug. 10, 2011) (ruling that a motion seeking prepayment for an expert’s deposition was premature because the Rule “clearly contemplates that a court order will be issued subsequent to the deposition;” further saying “Nor, as discussed above, does the rule entitle plaintiff to payment in advance, citing Rule 26(b)(4)(E), which entitles an expert to a reasonable fee for “time spent” responding to discovery); citing Johnson v. Spirit Airlines, Inc., No. CV 07-1874FBJO, 2008 WL 1995117, at *1 (E.D.N.Y. May 6, 2008) (“[The expert] therefore may not insist on advance payment ....”). Rather, if the parties cannot agree to reasonable reimbursement for plaintiff's experts following their depositions, either party may apply to the Court for such a determination;” “Dr. Seldes therefore may not insist on advance payment, and may not set a flat fee before he knows what he will be called upon to do; he may instead charge only a reasonable hourly fee.”)

Conte v. Newsday, Inc., No. CV 06-4859 JFB ETB, 2011 WL 3511071, at *2 (E.D.N.Y. Aug. 10, 2011) (citing Broushet v. Target Corp., ––– F.R.D. ––––, 2011 WL 1750753, at *1 (E.D.N.Y. Mar.3, 2011), and saying “Courts consider the following factors in determining whether a requested expert fee is reasonable: (1) the witness' area of expertise; (2) the education and training that is required to provide the expert insight that is sought; (3) the prevailing rates for other comparably respected available experts; (4) the nature, quality and complexity of the discovery responses provided; (5) the cost of living in the particular geographic area; (6) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26; (7) the fee actually being charged to the party who retained him; and (8) fees traditionally charged by the expert on related matters”)

Ratliff v. Baan Co., N.V., No. 1:99–CV–2455–WBH, 2003 WL 25774909, at *1 (N.D. Ga. Nov. 5, 2003) (concluding that after the expert’s deposition, the expert can submit a bill to be paid for the deposition)

Woodward v. Provident Life & Accident Ins. Co., No. Civ. A. 97–2062, 1998 WL 158744, at *3 (E.D. La. Mar. 30, 1998) (denying the motion to set an expert’s fee because the motion requests a flat fee to be paid in advance of the deposition without reference to “time spent” as enunciated in the Rule)

Burdette v. Steadfast Commons II, LLC, No. 2:11–980– RSM, 2012 WL 3762515, at *4–*6 (W.D. Wash. Aug. 29, 2013) (allowing prepayment of expert fees because the parties apparently did not dispute paying the fee in advance)

Federal Rule of Civil Procedure 26(b)(4)(E) (payment to experts)

Federal Rule of Civil Procedure 26(c) (protective orders to avoid undue burden or expense)

What to do when an organization resists your efforts to conduct a Fed. R. Civ. P. 30(b)(6) deposition by claiming it not only doesn't currently have information on the topics, but that it never had any? As Jim urges you to do in this episode, take the deposition and force the entity's designee to say it entirely lacks knowledge on the topics. Why? Because the absence of knowledge is itself a discoverable fact. And showing that an entity took no steps to become informed on critical matters can be powerful proof of indifference, negligence, or omission. Don't miss this one!

SHOW NOTES:

Order Overruling Defendant’s Objection To Magistrate Judge Vatti’s Order Dated February 5, 2026, LaBroad v. Costco Wholesale Corporation, et al., Case No. 3:24-cv-1102 (KAD), 2026 WL 1746249 (ruling that magistrate judge correctly determined “that the purported nonexistence of any materials regarding [defendant’s training on parking lot safety] is, itself, a relevant fact on which [Plaintiff] is entitled to develop evidence via Rule 30(b)(6)”)

Hepco Data LLC v. Hepco Medical LLC, 2020 WL 1870320, No. 2D19-2134 (2d DCA April 15, 2020) (certiorari granted, quashing order blocking depositions, because petitioners established through filed proffer that depositions were relevant; held, “litigants would never be able to take a nonparty deposition if all the non-party had to do to get out of it is to say that he or she had nothing to say; representations of opponent that discovery isn’t relevant need not be relied on)

John v. Core Brace, LLC 2021 WL 329460, No. 4:20-CV-00071-BLW (D. Idaho Jan. 29, 2021) (citing Apple. Inc., 282 F.R.D. at 263 for proposition that “A claimed lack of knowledge, by itself, is insufficient to preclude a deposition,” omitting additional citations)

United States of America v. Newman, 2021 WL 1026019, No. 19-1868 (RJL) ( D. D. C. Mar. 17, 2021) (sarcastically noting government’s proposed stipulation that certain evidence had not moved from its location during relevant time was an unconvincing “attempt to stipulate itself out of [having to respond to] discovery”)

Klorczyk v. Sears, Roebuck & Co., No. 3:13-CV-257 (HBF), 2015 WL 1600299, at *4-5 (D. Conn. Apr. 9, 2015) (holding that a "we-don't-know" response can be binding on the corporation at trial and prohibit it from offering evidence on those points; if a designee genuinely lacks knowledge, the designee must still be prepared to testify concerning the corporation's efforts to obtain the information and why it lacks sufficient knowledge)

QBE Insurance Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 690 (S.D. Fla. 2012) (establishing that the lack of knowledge answer is itself an answer which will bind the corporation at trial; lack of knowledge is insufficient grounds to preclude a Rule 30(b)(6) deposition; “The conclusion that the corporation is bound at trial by a legitimate lack of knowledge response at the 30(b)(6) deposition is, for all practical purposes a variation on the rule and philosophy against trial by ambush. Calzaturficio, 201 F.R.D. at 38; Wilson, 228 F.R.D. at 531; Taylor, 166 F.R.D. at 363 (rule prevents “sandbagging” and prevents corporation from making a “half-hearted inquiry before the deposition but a thorough and vigorous one before the trial”).

In this episode, we feature a brand-new deposition-related ruling that continues to build on the post-COVID pandemic rulings holding that in-person depositions remain the default and that parties seeking to force a remote-video deposition must satisfy the formidable good-cause burden. It's a great decision for your research bank, as are the others we've provided in the show notes below.

And here's a bulletin for you. As Jim explains here, research in the field of behavioral psychology shows us there's a powerful psychological reason for insisting that your deponent appear in person - and it isn't that you can personally gauge their demeanor. Don't miss this one!

SHOW NOTES

Groskreutz v. Agropur, Inc., No. 25-CV-1153, 2026 WL 1694341 (E.D. Wis. June 11, 2026) (in-person deposition required because of need for counsel to observe body language and because plaintiff failed to show good cause for remote video deposition)

Eletson Holdings, Inc., et al. v. Levona Holdings, Ltd., and Apargo Limited, et al., Case No. 1:23-CV-07331-LJL (S.D.N.Y. July 16, 2025), CM/ECF Doc. 505 (order requiring in-person deposition)

Simoni v. United Airlines, Inc., No. 1:21-CV-01267 (N. D. Ill. Aug. 25, 2023), CM/ECF Doc. 66 (order requiring in-person deposition)

Crutchfield v. Experien Information Solutions, Inc., et al., Case No. 1:25-CV-05697 (N. D. Ill. October 16, 2025), CM/ECF Doc. 44 (order requiring in-person deposition)

Fed. R. Civ. P. 30(b)(4) (“By Remote Means. The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions)

Fed. R. Civ. P. 26(c)(1)(b) and (c) (authorizing court to determine manner, time, and place of deposition or other discovery)

Bond & Depaulo, Accuracy of Deception Judgments, Personality and Social Psychology Review, Vol 10, Issue 3 Aug. 2006, https://journals.sagepub.com/doi/10.1207/s15327957pspr1003_2

Have you ever had a queasy feeling, as an examining lawyer is explaining the so-called ground rules for the deposition with your witness, that something about the instructions was amiss? But you weren't quite sure what to say - and didn't really know whether or how to object? Instructions like, "Can we agree that if you answer a question, it means you understood it?", and "Will you agree to limit your testimony to actual facts you personally know to be true, and not answer based on speculation or opinion?" can box your client in, cause them to omit important information, and do grave damage at later evidentiary hearings or trials. In this episode, Jim Garrity explains how these kinds of instructions may be improper and how to articulate your objections. It's a definite don't-miss.

In this episode, Jim talks about the value of "second-order" examinations - asking deponents not only what they know, but what others know (and what others know that still others know, which is a form of third-order knowledge). It's an incredibly valuable tool for ensuring you fully understand the actors, documents, and events in your cases. Garrity explains why witnesses will talk more freely about what others know than about what they themselves know, and wraps up with practice tips for litigators who are either taking - or defending against - second-order knowledge examinations.

As always, thanks for listening!

In this final episode of our cross-examination series, Jim Garrity turns to the Reid Technique, the interrogation system developed in the 1940s for American law enforcement. Though the method has drawn serious criticism and been linked to false confessions, many of its individual components quietly appear in depositions, administrative hearings, and arbitrations every day, often deployed by lawyers who have never heard the name John Reid.

We break the technique into three "movements" civil litigators will recognize: the non-accusatory, warm opening that triggers reciprocity; confrontation and theme development, where a sympathetic narrative conceals a damaging concession; and the compound question that forces a false binary. Along the way, we cover how to prepare witnesses to recognize tonal shifts, resist softened mischaracterizations, and reject false either/or options. Finally, Jim explains how taking attorneys can ethically deploy these tools themselves.

In this third installment of our series on examination techniques, Jim Garrity dives into the so-called Reptile Method, developed by jury consultant David Ball and plaintiff’s attorney Don Keenan, and explained in their 2009 book Reptile: The 2009 Manual of the Plaintiff’s Revolution. It's long been a controversial approach because, some say, it's a disguised version of Golden Rule arguments that are generally forbidden in most jurisdictions. But whether you’re on the plaintiff side looking to deploy it or the defense side looking to neutralize it, you need to understand how the three-stage sequence works, and where it’s vulnerable.

SHOW NOTES

https://columbialawreview.org/content/shadow-tort-law-lessons-from-the-reptile/ (Columbia University law review article on "The Reptile" method)

https://lewisbrisbois.com/insights/clientalerts/the-reptile-theory-in-practice (defense firm blog on the Reptile Theory)

https://imslegal.com/articles/reptile-brain-strategy-why-use-it-how-counter-it (jury consulting firm article on the Reptile Method)

In this second episode in a series on different cross-examination methods, Jim Garrity spotlights Irving Younger's famed Ten Commandments of Cross-Examination. It's one of the earliest formal systems for conducting an effective cross. As Jim explains, there isn't a single "best way" to question or cross-examine witnesses. The path to world-class examination styles is being aware of the different approaches, understanding them, experimenting with them, and even possibly combining elements from several to develop your own style.

In this episode, and over the next few, Jim Garrity analyzes some of the better-known techniques or methods of conducting deposition cross-examinations. He begins with the Pozner-Dodd method, based on the book Cross-Examination: Science and Techniques, by Larry Pozner and Roger J. Dodd. As Jim explains, there isn't a single "best way" to question or cross-examine witnesses. The path to world-class examination styles is being aware of the different approaches, understanding them, experimenting with each, and even possibly combining elements from several to develop your own style.

SHOW NOTES:

Pozner, Larry and Dodd, Roger J., Cross-Examination: Science and Techniques, 3d. Ed.

https://www.amazon.com/Cross-Examination-Science-Techniques-Larry-Pozner/dp/1632843919/ref=sr_1_4?crid=2OP2T6EBDBNI3&dib=eyJ2IjoiMSJ9.o49yLDTFRzsh1lO1WhQd4xBgkEuhYLH3obvuBC2GIdpGyzn1i0dg1lEzyMEYoFcB.NPgrs8W1727PEigEc3OXABbQt85juirYS59s5B12ids&dib_tag=se&keywords=pozner+dodd&qid=1772489570&sprefix=pozner+dod%2Caps%2C227&sr=8-4

In this episode, Jim Garrity - the leading expert in the country on deposition strategies and tactics - rolls out another spectacular deposition strategy you won't find anywhere else. It's the application of the PACE Method to your deposition scheduling. It will change how you draft your deposition notices forever.

PACE - an acronym for Primary, Alternate, Contingency, and Emergency - was devised by the U.S. Military to ensure that if the primary plan goes haywire, there is a Plan B: an immediate go-to backup. And a Plan C, and a Plan D. It sharply increases the odds of mission success because there are no debates or delays when one plan fails. Everyone switches to the next layer of redundancy.

Here, Garrity tells you how to apply PACE to deposition scheduling, so that when your primary plan for deposing a witness - say, an in-person deposition - cannot proceed, you (and all other participants) immediately switch to your alternate plans.

As always, thanks for listening to the number #1 podcast in the world devoted exclusively to deposition strategies and tactics for litigators handling civil, administrative, arbitrative, and criminal proceedings.