Explicitly Disclose Your Experts!

• Author: Lindsay Sestile
• Pages: 16-17

Published in Litigation News Volume 45, Number 4, Summer 20 20. © 2020 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

Explicitly Disclose

Your Experts!

It pays to properly disclose experts. Reporting on the Utah Court

of Appeals’ decision in Ghidotti v. Waldron, Compelling Discovery’s

Michael Lowry notes the plaintis argued they had adequately dis-

closed non-retained experts by identifying them as fact witnesses.

The court disagreed: “This court has consistently held that disclosing a

witness as a fact witness, by itself, is insucient to allow that witness to

also present expert testimony.” The court delineated the descriptions of

testimony required for fact versus expert witnesses and found the plain-

tis had produced a summary of their witness’s expected testimony only

as a fact witness. This was insucient under Rule 26 to disclose her as a

non-retained expert. Finally, the court rejected the plaintis’ alternative

argument that they had implicitly disclosed their fact witness as a non-

retained expert when they disclosed the substance of her potential testi-

mony through her deposition and financial documents. “[D]esignating a fact

witness and also providing supplemental records or diagrams is insucient

to designate that witness as an expert.” Lowry often sees witness disclosures

with a generic paragraph noting fact witnesses may also testify as non-re-

tained experts; he advises instead taking time to comply with the rule.

http://bit.ly/LN454-pn1

Judges’ Aliations Risk

Threatening Impartiality

Federal judges should guard against

even the appearan ce of compro-

mised impar tiality, according to an

Lindsay Sestile , Litigation News Associate Ed itor, monitors the blogosphere.

ethics opinio n by the Committee

on Codes of Cond uct of the U.S.

Judicial Conference. Covering the

opinion for Legal Ethics in Motion,

Tesneem Shraiteh reports the com-

mittee’s determin ation that federa l

judges shoul d refrain from beco ming

formally alia ted with the conserv a-

tive Federalist So ciety or the liberal

American Constitution Society. Such

aliations raise questions about

judges’ impa rtiality and are thus in-

consistent with Ca nons 1, 2, 4, and

5 of the Code of Judi cial Conduct .

While the commit tee found that

membership in the American Bar

Association’s Judicial Division does

not necessarily raise the same ques-

tions, judge s must remain vigi lant in

monitoring the div ision’s activities

in case t he ABA takes a position that

could necessit ate recusal in a mat-

ter. The committee further clarified

that judges may conti nue to accept

speaking engagements with these

organizations because speaking at

an event does not eq uate to endorse-

ment of an organiz ation or its ideolo-

gy. Judges must re main cognizant of

their public com ments, however, and

avoid making statem ents that could

call into question their impartiality.

Finally, the committe e advised these

new guideline s should not apply

retroactively to judges formerly ali-

ated with these organ izations.

http://bit.ly/LN454-pn2

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