Introduction: Expert Witness Disclosures
Persons who serve as expert witnesses are often asked to provide, or help to provide, an expert witness disclosure. In this post we will explain the purpose and required elements of an expert witness disclosure. I will also provide suggestions for experts in preparing an expert witness disclosure.
What is the purpose of an expert witness disclosure?
Expert witness disclosure is required in civil cases for two main reasons. First, the court system does not want trials to be won or lost on gamesmanship/surprises or “trial by ambush.” Instead, the system is designed to facilitate as much as possible the party with the stronger case prevailing. The idea is that when each side is allowed to prepare and present their best case the truth will prevail and the case will be decided on the merits. In order for the case to be decided on the merits each lawyer will need to be well prepared for trial. Each lawyer should know which witnesses the opposition will call and what those witness will be testifying to. This is especially important when dealing with the complexities and nuances of expert witness testimony. So one of the big reasons for a required expert witness disclosure is to allow the other side to be well prepared for expert witness testimony at trial.
The second big reason why an expert witness disclosure is typically required is to help facilitate settlement. The courts are very busy and trials are very risky and expensive for all involved. Expert witness disclosure rules are designed to force litigants to “put their cards on the table” and disclose the evidence they intend to present at trial. Once this happens, the parties will be in an informed position to evaluate settlement options. The policy goal of encouraging settlement is very effective. The vast majority of lawsuits are indeed settled or otherwise resolved prior to trial.
What are the required elements of an expert witness disclosure?
The requirements for an expert witness disclosure will vary according to the rules of the jurisdiction in question. Although the specifics of what must be disclosed may vary, the overall goal is always to allow the other side to minimize surprises at trial and to encourage an informed evaluation of the settlement value of the case. Expert witness disclosures can take many forms including reports, declarations, interrogatory answers, and depositions.
Expert Witness Reports
Some jurisdictions require expert witness disclosure via a report drafted by the expert. For example, for civil cases in federal court, Federal Rule of Civil Procedure 26 requires experts to “prepare and sign” a report containing “(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.”
Expert Witness Declarations
Other jurisdictions may require the retaining attorney to draft the disclosure. For example, California Code of Civil Procedure s. 2034.260 requires a declaration signed only by attorney who retained the expert. This disclosure needs to contain: “(1) A brief narrative statement of the qualifications of each expert. (2) A brief narrative statement of the general substance of the testimony that the expert is expected to give. (3) A representation that the expert has agreed to testify at the trial. (4) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including an opinion and its basis, that the expert is expected to give at trial. (5) A statement of the expert’s hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney.”
Expert Witness Interrogatories
Expert witness disclosures can also be made by the party via written interrogatories. Interrogatories are written questions sent from one party in a lawsuit to an opposing party. These questions must be answered under the pains and penalties of perjury. An example of expert witness disclosure questions contained in interrogatories can be found in Massachusetts Rule of Civil Procedure 26: “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.”
Expert Witness Depositions
An expert witness deposition is an examination of a expert witness under oath outside of a courtroom and typically not in the presence of a judge. Expert witness depositions provide powerful means of expert witness disclosure as depositions allow for follow up questioning. Depositions also allow the questioning party to read the body language and tone of the witness faced with challenging questions.
Expert witness depositions require significant preparation for both the lawyers and the expert. They will also require the services of a stenographer and may involve travel time and expenses. For these reasons expert witness deposition are very expensive and many jurisdictions do not allow expert witness depositions without special permission from the judge.
How can expert witnesses excel when preparing an expert witness disclosure?
When dealing with an expert witness disclosure I offer the following advice for experts:
- Know what the rules require in the jurisdiction in question and follow those rules. Failing to follow the rules for expert witness disclosure is a leading reason for expert witnesses being disqualified by the judge.
- If a lawyer or party is summarizing your expected testimony in a declaration or interrogatory, make sure you review, 100% agree with, and sign off on the disclosure before it is finalized.
- Make sure your opinions are well supported and well within your area of expertise.