July 29, 2015
According to the California Code of Civil Procedure (CCP), certain procedures exist for the exchange of expert witness information during a lawsuit. See CCP §§ 2034.010-2034.730.
This article discusses those procedures and offers guidance to attorneys, supplied by the Continuing Education of the Bar California organization (CEB). CEB, “How to Guide: How to Exchange Expert Witness Information,”.
Once a trial date is set, the steps for how to correctly exchange expert witness information come into play. This article offers a step-by-step guide, as follows.
1. Calculating the Date of Exchange
According to the CCP, the date for exchanging expert witness data must “occur no later than 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date.” See CCP § 2034.230(b).
If needed, attorneys can make a motion for exchange of information at a later date, if good cause is shown. Id.
2. Preparing the Demand
Attorneys must provide a written demand for a mutual information exchange.
This demand must contain: the name of the attorney's client (the party on whose behalf the demand is made), a statement that the written contents constitute a demand, and the date that the attorney has calculated for the exchange of expert witness lists, declarations, and any writings asked to be produced by the demand. See CCP § 2034.230.
If attorneys wish to see an averse expert's reports and/or writings, they must make a “demand for inspection and copying of all discoverable reports and writings made by the expert witness in the course of preparing [their] opinion.” CEB, citing CCP § 2034.210(c).
3. Serving the Demand
A written copy of the demand should be served on all parties who have appeared in the lawsuit. CCP § 2034.240. Generally, service is acceptable if it is personal or by delivery, as long as it is made to a party or a party's attorney. See CCP § 1011. When serving the demand, attorneys should “complete a proof of service and attach a copy of it to each copy of the demand” the attorney serves. Id. All originals should be retained by the attorney.
4. Preparing Expert Witness Information:
In this step, attorneys will be completing their expert witness designations and declarations.
In the designation of expert witnesses, attorneys will need to provide a list with the names and addresses of any person whose expert opinion the attorneys seek to offer into evidence in the case. CCP §§2034.210(a), 2034.260(b)(1).
Although the CCP and California courts differ on how to designate retained versus non-retained experts, all experts should be listed and their names and addresses provided, unless a noted exception applies.
Although declarations are not required for certain experts (e.g., treating physicians), those experts should still be included and designated on the list, with their names and addresses made available to opposing parties.
With respect to expert witness declarations, the information in this article is intended to apply only to those witnesses for whom a declaration is required. Declarations should typically include a brief statement regarding each expert's particular qualifications (CCP § 2034.260(c)(1)); a succinct statement of the substance of the testimony that a given expert is expected to provide (CCP §2034.260(c)(2)); a representation that an expert has agreed to give testimony at trial (CCP §2034.260(c)(3)); a statement that the expert is familiar with the case and will give a meaningful deposition about the expert's testimony, opinions, and the basis for those opinions (CCP § 2034.260(c)(4)); and a statement providing the expert's hourly and daily fees, both for testifying at depositions and for consulting with the retaining attorney (CCP § 2034.260(c)(5)).
The aforementioned discussion constitutes the basic steps attorneys must take in exchanging information on expert witnesses during litigation. Although other procedures exist for issues such as demands for production of documents and supplemental information, the above guidelines outline the basics for attorneys who must comply with the CCP and ensure a proper and sufficient exchange of expert witness information.