August 2, 2012

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.

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August 4, 2011

Protect trial by jury by limiting pre-trial discovery

As a longtime Baltimore trial attorney, I know that trial by jury is a unique and valuable feature of American government. In recent weeks, juries have come under a storm of criticism from members of the media following the Casey Anthony verdict. This criticism overlooks the historical importance of trial by jury, and the vital role that juries play today. Media criticism, however, is not the most serious threat to the continued existence of jury trials. Far more worrisome is the proliferation of costly pretrial procedures, which deter litigants in civil matters from pursuing their cases to trial. Without reform of these procedures, trial by jury is in danger of becoming a mere historical memory.

While the result in the Anthony trial was unpopular, it was not unreasonable. There was a sufficient factual basis for the jury to find the defendant not guilty based upon reasonable doubt. Even if the jury in the Anthony trial had erred, however, one aberrant verdict could not justify limitations on jury trials. Most statistical analyses report that jury verdicts on the whole are fair, reasonable, and appropriate.

History has shown the vital importance of juries to a free society of laws. While the ancient Egyptians and Greeks employed juries, our present system can be directly traced to the reign of King Henry II in 12th Century England. Henry sought a more rational method of resolving legal disputes than gruesome ordeals or trials by combat between the parties. He chose to place responsibility for fact finding in the hands of bodies of twelve individuals - jurors. The Magna Carta explicitly recognized a right to jury trial in 1215, after a group of nobles forced King John to accept limits on the authority of the crown.

English colonists brought juries to America, where the right to a jury trial became so important that the Declaration of Independence, in listing the colonists’ grievances, criticized George III, “for depriving us in many cases, of the benefits of trial by jury.” Since most colonial judges were appointed by the crown, colonists had relied on juries of their peers to defend them from arbitrary imperial laws.

After the colonies won their independence, trial by jury was a major issue in the debates over the formation of a new government. Ratification of the US Constitution almost failed due to its lack of an express requirement of civil juries. One distinguished Maryland attorney, Luther Martin, pushed hard for a jury trial requirement, which was eventually enshrined in the Seventh Amendment. Many states, including Maryland, have enacted similar provisions in their constitutions.

Juries are no less important today. In criminal cases, they serve as a check on overzealous prosecutions. In civil cases, jury verdicts advance the rule of law and influence social policy. For example, a verdict in a medical malpractice case might lead healthcare providers to render better treatment. And jury service is one of the few means, other than voting, that most citizens have for participating in government.

Conducting jury trials in the digital age poses new challenges, but these can be overcome with proper measures. While a juror may be tempted to use the internet to improperly research or discuss the trial, appropriate warnings from the court can deter such behavior. In a high-profile case, the court can “sequester” jurors, that is, require them to stay in a hotel out of contact with the outside world.

Unfortunately, other modern developments can prevent litigants from even bringing their disputes before a jury. In federal courts, less than one percent of all civil cases end in a jury trial. Since few lawyers have had the experience of litigating a jury trial, lawyers may choose to settle a case rather than risk a jury trial, to the detriment of their clients.

The primary reason for this state of affairs is the skyrocketing cost of litigating a civil case. Most, but not all, of this cost is attributable to pretrial discovery. Discovery is the stage of a case in which the parties, through their attorneys, request documents from each other, exchange questions (interrogatories), and conduct depositions (interviews of potential witnesses). In depositions, attorneys can spend hours arguing over the propriety of a question. Document requests are also problematic. Since companies and even individuals store most of their data electronically, the parties to a case can spend thousands of dollars retrieving, reviewing, and exchanging electronically-stored data, and thousands more fighting over the adequacy of these procedures.

Courts have struggled with these problems for decades, making little appreciable dent in the trend towards ever-more-costly civil litigation. Dramatic action is needed, such as re-writing the entire pretrial discovery rules for civil cases. The cardinal principle of the new rule should be: no pretrial discovery except that which is available in criminal trials, with judges retaining the power to make exceptions where warranted.

It is telling that pre-trial discovery in criminal cases -- which often involve life and liberty -- is far less expensive and time-consuming than in civil cases. Unlike civil cases, criminal cases involve no depositions or broad document request by the accused. In criminal cases, parties exchange witnesses and statements at specified times, counsel interviews the witnesses and they proceed to trial.

If courts eliminated much of the pretrial discovery in civil cases, legal fees and costs would go down, the litigants would be better served, and the vital institution of the jury trial may be rescued.

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June 16, 2008

Maryland Discovery Problems & Solutions

Maryland Discovery Problems & Solutions is a new book co-authored by Chief Magistrate Judge Paul W. Grimm, Charles Fax (of Rifkin, Livingston, Levitan & Silver) and yours truly. We and others offered an unusual seminar based on the book at the Maryland State Bar Association's annual meeting in Ocean City last week. The Daily Record ran this preview of the event.

If you think you know discovery rules inside and out, note Judge Grimm's comment in the article:

Issues Grimm said he sees all too frequently include “non-particularized or generalized boilerplate objections” to discovery requests, which give the judge little insight when ruling on the subsequent motion to compel; lawyers stating facts in motions without supporting them with a citation to any affidavit or document; and lawyers who fail to realize that litigation proceeds in an “adversarial system but in discovery you have to cooperate” and compromise.

For those who want to brush up on MD discovery rules, you're not too late for two upcoming MICPEL programs on the same topic, offered on June 17 and July 16. Details available here.

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