Expert Witness Discovery in Family Law Matters: Part I

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

Expert Witness Discovery In Family Law Matters: Part I

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

Most trial lawyers are familiar with the adage: you should never ask a witness a question on cross-examination unless you already know the answer. The rationale behind this adage is that by asking such a question, you are inviting the adverse witness to inform the court of something you do not know or to explain away a point you were trying to make in your cross-examination.

This adage rings particularly true with expert witnesses. Based on the expert's (presumably) superior subject matter knowledge and the sometimes technical nature of their opinions, allowing an opposing expert witness to hijack your cross-examination by "explaining" things to the judicial officer weakens your case and undermines the narrative you are trying to relate to the court.

For me, the most effective way to assume control over the cross-examination of an expert witness is to conduct expert witness discovery.

[T]he need for pretrial discovery is greater with respect to expert witnesses than it is for ordinary fact witnesses [because] .... [¶] ... the other parties must prepare to cope with witnesses possessed of specialized knowledge in some scientific or technical field. They must gear up to cross-examine them effectively, and they must marshal the evidence to rebut their opinions.¹

Availing yourself of the expert witness discovery process is therefore a critical step in trial preparation.

That process begins by serving a demand for exchange of expert witness information after the initial trial date has been set. The process continues by deposing the expert witness before trial. And the process culminates in the effective cross-examination of the expert witness, which can include the use of a motion in limine to restrict the expert witness's trial testimony. This article will address the demand for exchange of expert witness information, complying with that demand and protective orders that may be sought relative to the demand, and exchange of expert witness information. Part II of this article - to be published in a subsequent issue -will address deposing the expert witness and seeking to limit expert witness testimony at the time of trial.

II. Applicability of Expert Witness Discovery In Family Law Matters

Expert witness discovery is set forth in California Code of Civil Procedure sections 2034.210, et seq., as part of the Civil Discovery Act. Under Family Code section 210, "... the rules of practice and procedure applicable to civil actions generally ... apply to, and constitute the rules of practice and procedure in, proceedings under this code." "Accordingly, the provisions of the Civil Discovery Act-including those provisions that govern the time for completion of discovery (Code Civ. Proc., § 2024.010 et seq.)-apply to [family law] proceedings."²

III. Making The Demand

A demand for exchange of expert witness information is made pursuant to Code of Civil Procedure section 2034.210. A demand "that all parties simultaneously exchange information concerning each other's expert trial witnesses ... " can be made by any party to the proceeding after the initial trial date has been set.³ The information to be exchanged consists of a "list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial."⁴

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The expert witness demand may (but is not required to) include a "demand for the mutual and simultaneous production" of all "discoverable reports and writings, if any, made by an expert ... in the course of preparing that expert's opinion."⁵ As a practical matter, every witness demand should include a request for all "discoverable reports and writings."

The timing of the demand is strictly governed by code. The demand must be made "no later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date."⁶ It is not uncommon for the seventieth day before trial to fall on a weekend. Under Code of Civil Procedure section 2016.060, if the expert demand deadline falls on a weekend, "the time limit is extended until the next court day closer to the trial date." However, out of an abundance of caution, I have always made it my practice to calendar the deadlines for the preceding Friday to ensure I am not embroiled in a last-minute discovery dispute with opposing counsel.

The specific contents of the demand are also specified in the Civil Discovery Act. The demand must:

1. Be in writing;
2. Identify the party making the demand "below the title of the case";
3. State that the demand is being made "under this chapter"; and
4. "Specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings."⁷

The demand for exchange of expert witness information must be served "on all parties who have appeared in the action."⁸ It is not filed with the court, but instead the original is to be retained by the demanding party.⁹

The exchange date "shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date...."¹⁰ As noted above, Code of Civil Procedure section 2016.060 can extend the exchange date to the next court date if it falls on a Saturday, Sunday, or holiday.

IV. Exchange Of Expert...