Chapter 28 - § 28.5 • USE OF EXPERT WITNESSES

• Jurisdiction: Colorado

§ 28.5 • USE OF EXPERT WITNESSES

Employment attorneys use several types of expert witnesses to help make their case. Some of the common types of experts are discussed below.

Counsel should be alert to the potential for other fields of expert testimony particular to the case at issue. For example, the nature of the employer's business may be such that an expert witness is helpful to explain to the jury the usual code of conduct or terms of employment within the industry or the impact of the employee's conduct on the employer's business. Counsel should not feel compelled always to endorse an expert to rebut one endorsed by opposing counsel. In some circumstances, a counter-endorsement may only serve to validate the opposing party's position. An appeal to the jury's common sense may yield better results at substantially less cost. The party may be better served by engaging a consulting expert to assist in deposing and cross-examining the opposing expert, rather than by engaging an expert to testify.

§ 28.5.1—Expert Witness Discovery

Rule 26 Disclosures

Both C.R.C.P. and F.R.C.P. 26(a)(2) require automatic disclosures relating to expert witnesses. These include a written report or summary that contains all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; references to literature that may be used during the witness's testimony; exhibits to be used as a summary or for support of the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding 10 years; the fee agreement for the study, preparation, and testimony; an itemization of the fees incurred; and a list of other cases in which the witness testified as an expert at a hearing or by deposition within the preceding four years.

Upon receiving this extensive information, it is important to check other cases in which the expert has testified and attempt to obtain reports from any cases in which opinions were given on similar subjects or issues. It is valuable to know if a defense expert also testified on behalf of a plaintiff at another time and vice versa. For example, a defense expert might object to a certain percentage rate of wage increase in the plaintiff's economic loss report when, in fact, that defense expert, in preparing a prior plaintiff's report, used that same rate of wage increase or a higher one. Also, it is interesting to note how many times an expert has worked with a particular lawyer or law firm in a certain type of case.

Depositions of Expert Witnesses

Taking the Deposition of the Opposing Party's Expert

One goal in taking an opposing expert's deposition should be to identify the information provided by counsel to the expert and to identify the expert's assumptions. Factual errors in the expert's information or assumptions may provide grounds for attacking the expert's conclusions.

Counsel should always secure the attendance of the opposing expert witness at a deposition by use of a subpoena with a document production request (subpoena duces tecum). Counsel should not rely on the opposing counsel to make the arrangements, especially as to documents to be brought to the deposition. Counsel should review the documents and reports already produced with Rule 26 disclosures or in discovery. Counsel also should subpoena the expert to bring additional documents that will verify the expert's experience (or lack thereof) on the specific issues involved in the case, including the documents, treatises, or other sources the expert has reviewed in preparation for the deposition; the expert's time records, notes, memoranda, and correspondence relating to the case; and all documents or other information provided to the expert by opposing counsel. Counsel should consider using a consulting expert or the employer's own testifying expert to prepare for the deposition and, if schedules and finances permit, have the employer's expert attend the deposition to assist in the questioning.

Practitioners should be mindful that expert depositions in state court matters "shall not exceed 6 hours." C.R.C.P. 26(b)(4).

Defending an Expert's Deposition

Preparation is the key. Some experienced experts may believe they need little or no preparation, but this is not true. The expert always needs to be educated as to the particular issues of the case, some of which is done by document review and during preparation of the expert's report. This should...