Expert Witness Discovery in Family Law Matters: Part Ii

• Publication year: 2020
• Author: Stephen D. Hamilton, CFLS

Expert Witness Discovery in Family Law Matters: Part II

Stephen D. Hamilton, CFLS

Stephen D. Hamilton has been an attorney for 25 years, with a practice devoted almost exclusively to family law for 23 of those years. He has been a Certified Specialist in Family Law since 2004. He is currently a member of the California Family Law Executive Committee, for which he is the Legislation Chair. He is a member of ACFLS and serves on the ACFLS Outreach and Amicus Committees. He is also chairperson of the San Luis Obispo County Family Law Section.

I. Introduction

Requiring an opposing party to identify the expert witnesses they intend to call at a family law trial is an important part of the trial preparation process. The procedures to request, participate, and object to an expert witness exchange were discussed in Part I of this article.¹

What you do after receiving a timely expert witness exchange is equally important. This article addresses deposing expert witnesses designated by the opposing party, including the documents which should be requested from the expert. This article also addresses ways to limit expert witness testimony at the time of trial based on a failure of an expert to disclose an opinion at the time of their deposition or inadequacies in the declaration regarding the expert's anticipated trial testimony.

II. Noticing the Deposition of an Opposing Party's Retained or Designated Expert Witnesses

As soon as you receive an opposing party's expert witness list, you need to decide which of their expert witnesses you want to depose. My default answer: all of them. If a case warrants the retention of expert witnesses, it warrants deposing those experts to determine the full extent of their testimony, what demonstrative exhibits they intend to prepare for trial, and to identify the ultimate opinions they will offer at trial. Failing to depose an opposing party's expert witness weakens your client's case and inhibits your ability to limit the expert witness's testimony at trial, as is discussed in Section VI below.

Pursuant to California Code of Civil Procedure section 2034.410, the deposition of an expert witness may be noticed and taken upon "receipt of an expert witness list from a party...". The rules applicable to taking the oral or written deposition of a witness² are applicable to expert witnesses, except as specifically provided in the statutes governing expert witness discovery.

A. Deposition Location

The location of the deposition is governed by California Code of Civil Procedure section 2034.420. That section provides an expert's deposition "shall be taken at a place that is within 75 miles of the courthouse where the action is pending." Upon a showing of an exceptional hardship, a more distant location can be used. For the party taking the deposition, this is an important rule. Instead of your client paying you to travel to the expert, the designating party will need to pay for their expert to come to you. However, turnabout is fair play. The same duty can be imposed on your experts. It is not unusual for parties to stipulate that all expert witnesses be deposed where they work or reside. Such a stipulation would make sense where the hourly fee of your expert witness is greater than your hourly fee.

B. Percipient Witnesses

Different rules apply if the expert witness is a "percipient" witness. A percipient witness is one not specifically retained as an expert witness in the case, but who has personal knowledge of facts or information relevant in the case, is qualified to offer expert testimony, and will be asked about their expert opinions at the time of trial. A percipient expert witness is distinguishable from a retained expert witness as they are "not given information by the employing party, but [acquire] it from personal observation...".³ Examples of a percipient witness in a family law matter include a party's treating health care provider in a case where that party is asserting a disability which prevents them from working, a real estate professional who sold the parties a residence which is subject to disposition in the marital proceeding, or the party's accountant who prepared their tax returns.

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C. Witness Fees for Deposition

A deposing party need only pay an opposing party's retained expert for the time spent at the deposition. "The party designating an expert is responsible for any fee charged by the expert for preparing for a deposition and for traveling to the place of the deposition, as well as for any travel expenses of the expert."⁴ An expert witness, retained or percipient, must be paid

the expert's reasonable and customary hourly or daily fee for any time spent at the deposition from the time noticed in the deposition subpoena, or from the time of the arrival of the expert witness should that time be later than the time noticed in the deposition subpoena, until the time the expert witness is dismissed from the deposition, regardless of whether the expert is actually deposed by any party attending the deposition.⁵

There are statutory rules that limit, or reallocate, an expert witness's deposition fees:

• If an attorney representing the expert or a non-noticing party is late to the deposition, the tardy counsel must pay the expert's "reasonable and customary hourly or daily fee for the time period determined from the time noticed in the deposition subpoena until the counsel's late arrival...".⁶
• A retained expert cannot charge the opposing party a higher hourly fee than they are charging the party who retained them - however an exception is made if the expert donated services to a nonprofit or charitable organization.⁷
• An expert cannot charge a "daily fee" unless they were "required by the deposing party to be available for a full day and the expert necessarily had to forgo all business that the expert would otherwise have conducted that day but for the request that the expert be available all day for the scheduled deposition."⁸

The latter restriction is important. It is not uncommon for both retained and percipient expert witnesses to assert they are entitled to a minimum or daily fee. They are not.

The expert witness's anticipated fee, calculated based on their hourly rate and anticipated length of the deposition, can be paid either with the deposition notice or at the start of the deposition.⁹ The fee is to "be delivered to the attorney for the party designating the expert."¹⁰ If the deposition goes past the anticipated time, the noticing party must pay the balance of the expert witnesses fee "within five days of receipt of an itemized statement from the expert."¹¹

As a rule, I have always tendered the expert witness fee with the deposition notice. I do so because "[t]he service of a proper deposition notice accompanied by the tender of the expert witness fee described in Section 2034.430 is effective to require the party employing or retaining the expert to produce the expert for the deposition."¹² I also send the fee with the deposition notice for a practical reason - if I forget to bring a check to an expert witness deposition, and did not previously tender the fee, the deposition will not go forward without a stipulation from the other parties.¹³

D. Challenging an Expert Witness's Hourly Rate

Relief can be obtained from the court if it appears the hourly rate of the expert witness is unreasonable. A party can move for an order from the court setting the compensation of an expert witness under California Code of Civil Procedure section 2304.470(a). Notice of the motion (or for a family law case, the request for order) must be given to the expert witness. It must also be preceded by an attempt to meet and confer, with a declaration by counsel pursuant to California Code of Civil Procedure section 2016.040.¹⁴

Either the expert or counsel, during the meet and confer, must provide: proof of the expert's usual fee, the total number of times the requested fee has been charged and paid, and the "frequency and regularity with which the requested fee has been charged and received by that expert within the two-year period preceding the hearing on the motion."¹⁵ The expert (or counsel) must also provide and...