Point/Counterpoint, 0816 COBJ, Vol. 45, No. 8 Pg. 65
| Author | David C. Little and Richard P. Holme, J. |
Should Expert Witnesses Be Deposed?
David C. Little and Richard P. Holme, J.
Should Expert Witnesses Be Deposed?
During consideration of several of the recent proposals for amending the Colorado Rules of Civil Procedure, particularly including the original adoption of the Civil Access Pilot Project (CAPP) rules and, more recently, CRCP 26(b)(4)(A), the Colorado Supreme Court and its Civil Rules Committee received significant public input about the desirability of and necessity for deposing expert witnesses. The following discussion attempts to lay out the fundamental contentions, both pro and con, on this issue. Although both authors are members of the Civil Rules Committee, they are not speaking on behalf of that Committee and express only their own personal views and experiences.
The arguments set forth below derive from the authors’ experience with the substantial bulk of their cases. The authors acknowledge that there are exceptions to their positions and that extraordinary circumstances might warrant a different approach.
Point-Expert Witness Depositions Are a Valuable Weapon in a Lawyer’s Arsenal
By David Little
A discovery deposition is an opportunity unique to American jurisprudence that
• enables a party in litigation to learn about elements of an opponent’s claim or defenses before a final evidentiary hearing;
• is a shortcut to the substance of an adverse position not otherwise available to a party without considerable cost; and
• provides information that can facilitate a negotiated resolution of disputed claims.
Discovery depositions of experts provide an opportunity to learn and understand the expert’s qualities as a witness and the foundations of the expert’s evaluation of the opponent’s forensic assertions. This valuable information is in addition to that required by court rules.1
Procedures for Deposing Expert Witnesses
The Colorado Rules of Civil Procedure (Rules) govern the authorization and procedure for obtaining discovery depositions of disclosed experts. Many of the Rules that pertain to the depositions of disclosed expert witnesses were amended and became effective for cases filed after July 1, 2015.2 This includes the information required by CRCP 26(a)(1) and information about the experts who would be expected to present trial evidence pursuant to Rules 702, 703, or 705 of the Colorado Rules of Evidence.[3]
Beyond the requirement to identify the expert, the Rules require a written report that must, among other things, contain a complete statement of all opinions to be expressed and the bases and reasons therefor.4 The Rules also require a description of the data or other in formation that the witness considered in forming his opinions and the identification of any exhibits to be used in support of the opinions. The witness’s qualifications and lists of the witness’s publications and former testimonial experience must also be included. Finally, the Rules require disclosure of the compensation paid and to be paid, and the witness’s report or statement must be provided.
Understanding Disclosures
The proponent of the expert testimony is obliged to reveal virtually all information about the expert and the expert’s proposed testimony. This includes information about the expert, the expert’s qualifications, and the information the expert used to generate her opinion. However, information that may be relevant to the expert’s opinions does not have to be disclosed, even though it might have material impact on the disclosed opinions, if the proponent does not plan to use it. The expert, for instance, may have chosen to ignore certain features of the subject matter to arrive at a particular conclusion, or there may be information that, had the expert considered it, might have tempered the opinion. The Rules do not require disclosure of such information, which the expert may have excluded from consideration, and the obligation does not require discussion of information that the expert intentionally ignored or was requested to not consider.
Other matters that are not required to be disclosed are tested scientific theories that the expert chose not to consider; opinions that may disagree with the expert’s analysis; factual background not evaluated; and the expert’s rejection, in whole or in part, of the body of knowledge involved in the expert rendering.5
The Importance of Observation
The deposition...
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