Is there anything worse than the feeling when you receive the demand for expert witness information during litigation? Even if the demand is appropriately crafted to comply with applicable rules of discovery, you have tactical decisions to make.
First on the list of discovery response concerns is whether you have retained an expert witness. You may be in the uncomfortable position of heading into the discovery stage of litigation with only preliminary work undertaken in your selection process. Do you ask for an extension to respond or do you timely acknowledge you have not retained an expert but will update when you do?
On this first point, you need to know the governing rules, ethical considerations, and your own trial strategy. Your decision on when to respond will likely be governed by a combination of rules, the status of the expert witness search and hire, and tactical considerations such as the status of settlement negotiations.
Second, if you have retained an expert witness, you face the agonizing task of crafting the language of the response. To embark down this path, it is important to know the rules governing any amendment of your discovery response. If you cut your language too tightly, you could get snagged during trial. But, if you use broad wording, you could face failure to provide notice arguments at trial.
On this second point, some take-aways can be offered. For instance, you might want to craft your discovery responses with the help of your expert witness. Every discipline has its own vocabulary and terms of art. Who better to assist you with wording than the expert witness? At the same time that you work on the discovery demand, you get another lesson in the language to use at trial and, likely, some tips on what to look for when you receive the expert witness discovery responses from your opponent.
Third, you should periodically review your expert witness discovery responses as you sharpen your case approaching trial. All too often lawyers write a discovery response, file it, and don’t look at it again until opposing counsel makes an objection at trial during expert witness testimony. It may be that an earlier theory of liability was not fully dimensioned until other discovery materials were exchanged. Or, your expert witness may have undertaken a site visit since you drafted the expert witness discovery response.
This periodic review of your expert witness discovery response will also force you to pull out the rule books and do the case research to understand how to amend your response. If you can amend as of right, you will still need to calendar any trial order deadlines that will terminate that phase. If you have to file a pre-trial motion to amend, look at the standard and make sure you can meet it through supporting documentation. And, if you have to make the amendment during trial, be ready to present the argument that will get you over the burden of proof before your expert witness takes the stand.
Handling discovery about your expert witness is different than the same topics relating, for instance, to your eye witnesses. Knowing the legal requirements for timing and scope of disclosure, as well as procedures to amend, will help to ensure your expert witness I permitted to give the desired testimony at trial.
By: Paloma A. Capanna, J.D.