Expert Witnesses and Discovery
The great thing about expert witnesses is they are, well, experts. Most likely, they know all there is to know about the subject matter your case involves or you wouldn’t have hired them. You may well be tempted to huddle up with these brilliant minds and involve them in your litigation strategy and preparations.
To some extent this instinct is correct, especially in cases dealing with issues unfamiliar to you. If you are handling a medical malpractice suit involving a cerebral hemorrhage, a subject you have never encountered before in your career, a good expert can become a valuable guide through the uncharted wilderness of neurosurgery.
In general, but especially in very technical litigation, consider your expert a full member of the team. You can review deposition testimony with your expert and ask him or her for help in planning the deposition of adverse witnesses. Sometimes it’s helpful to invite your expert to sit in during depositions so that you can obtain immediate advice.
But be careful. Much of what you communicate to your expert is subject to discovery. Even information you consider protected under the lawyer/client privilege or work product doctrine may be discoverable if you share the information with the expert.
Before opening communications, be sure to familiarize yourself with the rules of evidence. The challenges of discovery relating to experts can leave you in turmoil unless you meld knowledge of the rules with local customs and case strategies. Even so, take care not to show any material to a testifying expert that could, if produced in discovery, damage your case irreparably. Similarly, do not have conversations with the expert that you don’t want disclosed.
In federal court, you must also be mindful of writing used to refresh an expert’s memory prior to or during testimony. Rule 612 provides that the opposing party has a right to the production of such material. State rules of evidence governing discovery and disclosure will vary; for example, the Maryland counterpart to Rule 612 only requires production of the writing if it is used during the hearing. The requirements also vary according to the type of expert (testifying, hybrid/fact, or non-testifying or consultant expert).
Federal disclosure requirements for experts retained to testify solely regarding opinions are the most complex. You must disclose the expert’s name as well as a written report containing:
• A complete statement of all opinions to be expressed and the basis and reasons for the opinions;
• The data or other information informing these opinions;
• Any exhibits to be used in conjunction with the opinions;
• The qualifications of the witness, including a list of publications authored within the last ten years;
• The compensation received for the study and testimony performed; and
• A list of any other cases in which the witness has provided expert testimony, either in trial or deposition, for the preceding four years.
These initial disclosures may not be enough if you later develop additional opinions or evidence of importance. In that case, be sure to supplement the original disclosure or you may have to do without your expert. Rule 37 (c) provides for the exclusion of expert testimony if it is not properly disclosed to opposing counsel.
The federal requirements for hyrid/fact experts (for example, a physician who treated the plaintiff and will also render opinions) demand only that you disclose the witness’ name. Hence opposing counsel may wish to pose an interrogatory to ascertain further details and follow up with a deposition.
Experts engaged to consult but not testify are usually immune from discovery, though extreme circumstances can arise to pierce this immunity. For example, what if a testifying expert engages in extensive meetings with the consultant? The opinions shared between them could be brought to light – to the detriment of your case.
In state courts, the rules may vary. In Maryland, for example, there are fewer mandatory disclosure requirements for experts. Maryland law holds that the expert may prepare a report but it is not required. Maryland Rule 2-402(e)(1) provides that a party may, by interrogatories, require: the identification of experts intended to testify; the subject of the testimony; the findings and opinions about which the expert is expected to testify; the grounds of each opinion; and a report made by the expert, if one was prepared.
While these evidentiary matters are arcane, ignoring their intricacies can be devastating. If you write your neurosurgeon expert detailed letters about the client, you may find your own words coming right back at you in court. Ultimately, you want to get the most out of your expert’s knowledge without compromising your case.