By Captain Kirk Greiner
Extensive changes to Rules 26 through 37 and to Rule 16 of the Federal Rules of Civil Procedure took effect 1 December 1993. Rule 26, General Provisions Regarding Discovery; Duty of Disclosure – Experts is explained in detail below. The revised rules authorize district courts to adopt discovery procedures which differ from certain provisions of the newly amended Federal Rules. Many district courts have these new rules under consideration but have not yet adopted them.
Under the revised rule 26, experts would have to follow these guidelines:
I would suggest the following format which I have been using for years. The report should be divided into sections as follows: Summary – one or two sentences setting forth the bare basis of the case; Qualifications – short summary of relevant background of the expert, ended by stating "See attached curriculum vitae"; Materials Reviewed – list all depositions (including the page numbers if you haven’t read or been furnished the entire deposition), photographs, on scene examinations, etc. used in arriving at the opinions; Facts – List all of the facts which are relevant which have been perceived from the materials or examinations listed in the previous section; Opinions – set forth the opinions which were arrived at from the preceding facts.
Finally, sign the report.
If the expert is to be deposed or is scheduled to testify in court, he or she should be prepared to answer the questions of compensation earned up to the date of testimony.
Attachments to the report should be the expert’s curriculum vitae which may include a list of all publications which he or she has authored in the previous ten years. "All" means exactly that – list them even though they are not relevant. Alternatively, an independent list of publications may be attached. I would not attach the list of cases in which you have testified to the report but rather have it available if requested.
If the expert changes his opinion or arrives at additional opinions after his discovery deposition has been taken, he or she must communicate that to the attorney for whom they are working immediately since the attorney is required to notify the opposition. This is not new as many judges have precluded testimony by experts on matters which were not revealed in his report or deposition.
Personally I favor the new expansion of the disclosure requirements. Conducting a trial as if it were a poker game with each party holding their cards tight to their chest so that no one can know what they have is not the vest way to obtain justice.
All of which reminds me of a comment a Federal judge made to me as we existed at a dinner party. My question to him had been, "Why aren’t more experts hired by the courts so they are completely removed from either side?" He replied. "Because we practice under the adversarial system." I note an article in the December issue of the Testifying Expert entitled "Attorney Alerts Experts to the Death of the Adversarial System." Harold Feber, Esq., a Denver trial attorney spoke at the recent National Forensic Center’s 10th National Conference which addressed the future of litigation where arbitration rather than trials will be a primary way of settling differences. In this expanded arena, court appointed experts may be used more frequently.
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