A Practitioner's Guide to the Management and Use of Expert Witnesses in Washington Civil Litigation

• Publication year: 1979

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 3, No.1FALL 1979

A Practitioner's Guide To The Management And Use Of Expert Witnesses In Washington Civil Litigation

Thomas V. Harris(fn*)

I. Introduction

The Washington litigation process places a premium on the skillful management of expert witnesses.(fn1) Testimony presented by such witnesses is both readily admissible(fn2) and virtually unlimited in scope.(fn3) Washington's adoption of the new Rules of Evidence(fn4) can only serve to reinforce the current practice.(fn5) Since most litigated cases involve substantial factual disputes, the development and presentation of expert testimony should be a major concern of all trial attorneys.(fn6)

The importance of trial examination has never been underrated. That part of the litigation process is one that all attorneys relish. The skillful management of expert witnesses, however, involves far more than the formulation of techniques for trial examination. The proper selection, preparation, and protection of one's own experts lay the necessary groundwork for direct examination. Timely ascertainment and thorough cross-examination of opposing experts during the discovery process allow an attorney to limit their effectiveness at trial. Unfortunately, these preliminary matters are often mismanaged. As a result, many attorneys begin trial with little chance of making a skillful presentation.

This article offers a basic system for the management and trial use of expert witnesses.(fn7) Central to this system is a concern for the preliminary litigation events that are so often overlooked.

II. Selecting Experts

A. Appropriateness

Rule 702 of the new Rules of Evidence gives the trial court(fn8) much discretion in determining whether expert testimony is appropriate.(fn9) The thrust of that rule, however, is that expert testimony should be allowed in all cases where such testimony "will assist" the trier of fact.(fn10) Since trial judges in Washington cannot comment upon or resolve evidentiary disputes,(fn11) the language in the Rule should be applied liberally in favor of admissibility. In practice, a judge will admit expert testimony as long as it "may" assist the trier of fact.

B. Deciding Whom To Select

In most litigated cases, opposing counsel will also produce expert testimony on the same issues. As a result, the selection process involves more than securing an expert who will render a favorable opinion. The credibility and persuasiveness of an expert are equally important concerns. The ultimate decision made by the trier of fact will often turn on his feeling as to which expert is better qualified and more trustworthy.

Experts who testify in many different substantive areas should be avoided. That these experts of "last resort" are often used is understandable. They are highly visible, adept at testifying, and always available. These experts, however, are not highly credible and should remain experts of last resort. Specialists and sub-specialists are far more credible.(fn12) Unfortunately, the securing of highly qualified experts is not a mechanical process.(fn13)

In many cases, independent observers can be qualified as expert witnesses. As Rule 702 emphasizes, an expert witness need not possess any academic credentials.(fn14) Law enforcement officers, for example, can be used very effectively as expert witnesses. A thorough police officer, testifying as to point of impact, speed, or the rules of the road, will probably be more persuasive than experts retained by either of the parties.(fn15) The fact that an expert has not been retained by any of the parties can only add to his credibility.(fn16)

In many cases, service of the summons and complaint is the first notice that a defendant has of a particular claim. As a result, the plaintiff has the first opportunity to retain the most qualified experts available on the issues involved in that lawsuit.

III. Preparation of One's Own Experts and the Pretrial Process

A. Communications Between Attorney and Expert

Washington Superior Court Civil Rule 26(b)(3) protects the confidentiality of both an attorney's work product and the mental impressions of an attorney or other "representative" of a party.(fn17) That rule, however, does not discuss an attorney's attempt to influence his own expert's thought process. Opposing counsel is entitled to know the nature of a trial expert's assignment and all the things he has considered in reaching his opinions. Although opposing counsel will normally not object to a segregation of attorney-expert correspondence prior to the expert's deposition, he need not necessarily make such a concession.(fn18) Consequently, an attorney should never memorialize his own views in materials sent to an expert.

Only those materials which opposing counsel and the finder of fact can safely review should be provided to an expert. Providing the trial expert with all relevant materials, including adverse evidence, will impress the trier of fact that the expert has performed a thorough evaluation. Ordinarily, such materials should be limited to those that either will be admissible in evidence at the time of trial or will be the proper basis for the expert's opinions.(fn19)

One should be careful about having experts perform experiments or tests. Opposing counsel is entitled to know about such work. If the results of that work do not support the proponent's position, it will be necessary to refrain from calling that witness.(fn20)

As a general rule, a party's experts should be isolated from one another during the discovery process. In fact, experts should be instructed that they are not to communicate with each other or to furnish each other with any reports or other material. An attorney should control the materials his expert accumulates. Such a procedure serves three practical purposes. First, it protects against the furnishing of inappropriate or biased comments from one expert to another. Second, an attorney may wish to refrain from using one of the expert witnesses that he has retained. If that expert's report has been furnished to other experts, opposing counsel will be able to cross-examine those trial experts on the basis of the report. Third, keeping experts isolated emphasizes their independence and strengthens their credibility.

Where the opinions of one expert constitute the foundation for another expert's opinions, those experts must necessarily be familiar with each other's work. In such a situation, an attorney should still act as the intermediary between his experts in order to control the materials that they exchange. Materials developed by one expert should never be transmitted to another expert unless counsel has determined either that the expert preparing the report will be called as a trial witness or that there is nothing harmful in those particular reports.

Careful consideration should also be given to the matter of whether an expert should prepare a written report. In most cases such a report should not be written.(fn21) A report unnecessarily commits an expert witness to a particular position and to the factual data upon which he has relied. As the discovery process unfolds, new facts may be discovered.(fn22) An expert witness, moreover, may not fully understand all the legal implications of the statements contained in his report.

B. The Deposition of One's Own Expert

1. Procedure and Timing

In most cases, parties willingly allow the deposition of those expert witnesses who will testify at trial.(fn23) Civil Rule 26(b)(4)(A)(ii), however, does not require such willingness. Without leave of court or the acquiescence of opposing counsel, an expert may not be deposed. Under Civil Rule 26(b)(4)(A)(i), interrogatories are the only discovery device to which a party is clearly entitled.(fn24)

The recent trend in the federal courts, however, is to allow wide-ranging depositions to be taken.(fn25) Rule of Evidence 705, based on the federal counterpart, would seem to require such an approach. Under that rule an expert can testify to an opinion without disclosing the factual basis for that opinion.(fn26) Within such a system, effective cross-examination at trial is not possible without full pretrial disclosure. The use of interrogatories, moreover, is seldom an adequate means of discovery with respect to expert witnesses.

The timing of depositions is important. Ordinarily, a defendant should demand the right to depose plaintiffs expert before he allows his own expert to be deposed.(fn27) Defense counsel should argue that his expert will be responding to the plaintiffs contentions and that he has no need for expert testimony unless and until the plaintiff has presented a prima facie case.(fn28) For his part the plaintiff might try to force the defendant's expert witness to commit himself before the plaintiffs expert is deposed.(fn29)

Unless there are exceptional circumstances, a party cannot discover facts or opinions held by opposing experts who will not be called as witnesses at trial by the party retaining them.(fn30) This general rule and the provisions of Civil Rule 26(b)(4)(B) are relevant to the following four important situations.

Treating Physicians. Civil Rule 35(b)(2) provides that once a plaintiff either requests a copy of an independent examiner's report or takes that doctor's deposition, he waives the physician-patient privilege as to any past or future treating physicians.(fn31) Even if...