Discovery and Your Expert
| Author | David J. Galluzzo |
| Pages | 89-158 |
2-1
Chapter 2
Discovery and Your Expert
§200 Introduction
§210 Your Expert’s Deposition
§220 Interrogatories and Requests for Admission
§230 Protective Orders
§235 Expert Report
§240 Your Expert’s Documents
§200 Introduction
§201 The Expert’s Role in Litigation
§201.1 Preservation of Evidence
§201.2 Spoliation in Product Liability Cases
§201.3 Experts in Document Discovery
§202 The Discovery Process
§202.1 Deposition Preparation Checklist
§202.2 Interrogatory Preparation Checklist
§202.3 Document Production Preparation Checklist
§202.4 Rules of Evidence Checklist
§202.5 Voir Dire
§202.6 Cross-Examination
§203 Disclosure Requirements
§210 Your Expert’s Deposition
§211 Why Preparation Is Crucial to the Success of Your Case
§211.1 Your Ethical Obligations
§211.2 The Pitfalls of an Under-Prepared Expert Witness
§211.3 The Pitfalls of an Over-Prepared Expert Witness
§21 2 Expert’s Impact on Factual Testimony: the Thin Line between “Wordsmithing” and Alteration
§213 Privilege Issues—What Is and Is Not Discoverable
§214 Preparing Yourself to Prepare Your Expert: a Step-by-Step Guide
§214.1 Know Your Expert
§214.2 Prepare to Lead
§214.3 Read the Expert’s Publications
§214.4 Identify Key Documents
§214.5 Prepare Your Document Sets
§214.6 Organize Your Presentation
§214.7 Schedule Time with Your Expert
§215 Preparing Your Expert for Deposition: A Step-by-Step Guide
§215.1 Basic Rules, General Instructions, and Specific Cautions
QAEW 2-2
§215.2 A Multi-Level Strategy for Building Your Expert’s Confidence and Competence
§215.3 Challenge Your Expert by Going Live
§216 Defending the Deposition; Deposition Objections
§217 Post-Deposition Review
§220 Interrogatories and Requests for Admissions
§230 Protective Orders
§235 Expert Report
§240 Your Expert’s Documents
§241 Attorney-Client Privilege
§242 Expert’s Notes and Communications with Non-Attorneys
§243 Discovery of Non-Testifying Expert
Sample: Motion to Quash Subpoena Duces Tecum
Sample: Order Quashing Subpoena Duces Tecum
§244 Discovery of Non-Testifying Expert’s Identity
§245 Admission of Documentary Evidence
Sample: Stipulation Regarding Admission of Documents
§246 Discovery of Electronic Documents
§246.1 Admission of Electronically Stored Information
§247 Discovery on the Internet
2-3 DYE §201
§200 Introduction
Once you have selected an expert, arrange a
meeting to define the expert’s role and the division of
labor between you and the expert, explain the nature
of the case and determine what is expected of each
party and what the limitations are of the expert.
Your expert should educate you concerning
technicalities and idiosyncrasies of his or her area
of expertise. Make sure he or she is forthright in
explaining any limitations he may have in testifying to
the desired ultimate opinion. Any doubts he may have
about your theory or the manner in which the opinion
is to be presented must be expressed at this stage of the
case. It is essential that you are aware of his reluctance
now rather than after the case has progressed—when
you might be committed to a theory.
It is equally important that the expert is aware
of the peculiarities of the legal profession and how his
testimony relates to your overall litigation plan. If your
witness is inexperienced as an expert and unfamiliar
with the process of litigation, the time you spend with
him at an early stage of the case will prove especially
beneficial. Acquaint the expert with the vocabulary of
the law as it bears upon his testimony, the constraints
that are imposed upon expert testimony, the time
limitations, the nature of the discovery process, trial
procedures (if the expert is expected to testify at trial)
and how he fits into the litigation process.
§201 The Expert’s Role in Litigation
The expert should be made aware of the
nature of the case in detail so that he is fully aware
of his role in the overall litigation plan. Explain the
theories of liability and defense to him, and give
him pertinent pleadings and documents. Just as you
might be unfamiliar with his field and will have to
seek information from him during the course of the
trial preparation, encourage him to ask questions
concerning the legal process throughout the litigation.
Consider using the expert’s conclusions early in
the litigation. Statistics vary, but over 90 percent of cases
filed are settled without trial. Settlement frequently
occurs within a month of trial after substantial sums
have been expended in preparing and responding to
discovery and pretrial motions. If settlement can be
accomplished early in the proceedings, the same result
often is reached at a fraction of the cost. To facilitate
an early settlement, consider providing the opposing
party with your expert’s conclusions and the basis for
those conclusions early in the litigation. With expanded
and liberalized discovery, your expert’s opinion will be
known to the opposing party before trial anyway.
An expert can assist in the evaluation of a
case in preparation for settlement negotiations.
In straightforward personal injury litigation, an
experienced attorney may be able to advise the client
as to the chance of prevailing on the issue of liability,
and jury verdict services can provide information as
to the range of verdicts for the type of injury and the
special damages that have been sustained. However, in
complex litigation such as anti-trust cases, insurance
coverage matters, class actions, toxic tort claims,
contract disputes, and multi-party litigation in which the
apportionment of damages and the degree of fault are at
issue, experts may be essential. Experienced experts can
provide estimates of the various scenarios and the range
of the amount of potential verdicts and can identify the
advantages or difficulties in the case. Before a client can
take an intelligent position as to settlement, he or she
should have the benefit of an expert as to an evaluation
of the claim and the potential results.
Case
United States v. Capener, 608 F.3d 392 (9th Cir. 2010) was
a failed prosecution of a physician accused of health care
fraud involving billing for surgeries that were allegedly
unnecessary, never performed, or exaggerated for billing
purposes. The defendant physician sought an award of fees
pursuant to 18 USC §3006A which allows an award of fees
to a defendant when the prosecution acted in a manner that
was vexatious, frivolous, or in bad faith. The government
argued that it relied on an expert physician who reviewed
the defendant’s patient files, pathology reports, and CT
scans, and concluded that many of the surgeries that the
defendant billed for were either unnecessary or were not
performed. The court held that where the government ceas-
es the investigation based on the opinion of an expert and
the expert has not indicated a need for any further investi-
gation, the government has not acted frivolously. The inter-
pretation of the pathology report was a technical matter,
not a legal one. There was no basis for claiming that the
prosecutors were not acting in reliance on the expert. The
award for attorney’s fees is improper where the govern-
ment did not act frivolously in failing to perform an addi-
tional investigation after relying on the expert’s opinion.
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