WINNING THE BATTLE-OF-THE-EXPERTS:
DISCOVERY OF EXPERT OPINIONS

DISCLOSURE OF EXPERT OPINIONS THROUGH INTERROGATORIES & EXPERT DEPOSITIONS

A. Designating Experts

Either in responding to formal discovery or in complying with pre-trial orders, a party must generally designate all expert witnesses within a reasonable time prior to the trial itself. In so doing, the attorney must be careful to designate all persons who could potentially be called as expert witnesses to preserve the ability to present the most beneficial testimony at trial. In fact, even where certain lay witnesses may offer testimony bordering on expert opinion, it would be wise to designate these persons as expert witnesses to the extent that any aspect of their testimony would be regarded as expert opinion.

To preserve the right to call expert witnesses, parties must be careful to adhere strictly to the rules and orders of court. Without designating experts sufficiently in advance of trial, and properly disclosing the nature of expected testimony, a party may be precluded from calling these persons to the witness stand. Thus, one must pay close attention to federal and state provisions regarding the discovery of expert testimony.

B. Disclosure of Expert Opinions

1. Federal Requirements

Under the Federal Rules of Civil Procedure, the availability of discovery tools to obtain expert opinions and to determine the bases for such opinions depends on the type of expert for whom discovery is sought. There are basically two types of experts: (1) Non-Testimonial Experts, who have merely been consulted to provide assistance in litigation analysis or strategy; and (2) Testimonial Experts, who are expected to be called at trial.

According to the Federal Rules of Civil Procedure, one may only "discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only ... upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means." Fed. R. Civ. P. 26(b)(4)(B) (emphasis added). Because there is no need to prepare for cross-examination in the case of those experts who will not even appear at trial, there is truly no need for discovery. Since these experts are a part of the internal trial strategy and analysis of the case, their opinions and information are protected from discovery in a manner quite similar to attorney work product.

In the case of testimonial experts, the need to prepare for cross-examination is sufficiently great that the Federal Rules permit more liberal discovery. Under Federal Rule 26(b)(4)(A)(i), one may propound interrogatories to an opposing party, requesting that party 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." Thereafter, a party may file a motion to conduct additional discovery such as depositions. Fed. R. Civ. P. 26(b)(4)(A)(ii). Yet, while the rule technically requires a motion for such discovery, parties typically agree to the scheduling of expert depositions and rarely disturb short-tempered federal judges with such motions. Indeed, absent extraordinary circumstances, filing such a motion is an easy way to incur the full wrath of a federal judge's temper.

Despite these discovery provisions, the Federal Rules require that a party designate expert witnesses and disclose the substance of their testimony and opinions even without a formal discovery request. According to Federal Rule 26(a)(2), a party must designate all expert witnesses at least 90 days prior to trial or as otherwise ordered by the court. At that time, this disclosure must "be accompanied by a written report prepared and signed by the witness." Id. The rules require that this report be very comprehensive:

The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

Fed. R. Civ. P. 26(a)(2)(B). While this mandatory disclosure rule is a relatively new innovation in the Federal Rules, courts have, in actual practice, varied on the comprehensiveness of the required report. However, because the rule requires a rather comprehensive list of disclosures for the party wishing to call an expert witness, it also may provide an obstacle to the admissibility of expert testimony for the party who falls short of these rigorous requirements.

2. Maryland Requirements

While the Maryland Rules do not contain the mandatory disclosure requirements of the Federal Rules, the other discovery tools provided are virtually identical. Like the Federal Rules, Maryland distinguishes between testimonial and non-testimonial experts, providing liberal discovery for the former and virtually none for the latter. To obtain information from non-testifying experts, a party must demonstrate a "substantial need" for such information and show that it would experience "undue hardship to obtain the substantial equivalent of the [information] by other means." See Maryland Rule 2-402(c), 2-402(e)(2).

For testimonial experts, the Maryland Rules permit parties to obtain the substance of expected testimony in the form of interrogatories and a request for any written reports. Then, without mentioning any motions requirement, the Maryland Rules state that "a party may obtain further discovery, by deposition or otherwise, of the findings and opinions to which an expert is expected to testify at trial, including any written reports made by the expert concerning those findings and opinions." Maryland Rule 2-402(e)(1).

3. Strategies for Maximum Flexibility

When designating experts or disclosing the substance of their opinions and expected testimony, it is important to comply fully with the rules of discovery. It is equally important to respond in such a manner as to ensure maximum flexibility for future trial strategy. Thus, when designating experts, designate all persons who could possibly be called as witnesses at trial. In this way, you will preserve the option to call various individuals as expert witnesses thereafter. When disclosing their areas of expertise, define the areas of expertise broadly so that you will not encounter undue difficulty if the court questions the legitimacy of a specifically-defined field. Finally, make certain that you disclose the expert's opinions and other information in such a manner as to afford the expert sufficient flexibility on the witness stand. Since anything an expert says in a report, or otherwise discloses during the course of discovery, may be used against her in court, carefully screen all disclosures to avoid areas of potential impeachment. Despite the Federal Rules' stringent pre-trial disclosure provisions, err on the side of greater generality in expert disclosures while providing sufficient detail to allow for all desired testimony at trial.

C. Drafting Effective Interrogatories

When drafting interrogatories seeking the discovery of expert information, one should make every effort to avoid unnecessary discovery issues by using interrogatories which mirror (and even cite) the language of the federal or state procedural rules. The following is an example of such an Interrogatory:

Pursuant to Maryland Rule 2-402, identify all experts whom you propose to call as witnesses at the trial of this case, stating, without limitation, the subject matter on which the expert is expected to testify, the substance of the findings and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and produce any written report made by the expert concerning these findings and opinions.

By tracking the actual language of the rule, and citing to the rule itself, opposing counsel would be hard-pressed to object to this Interrogatory.

D. Deposition Strategy

By far, the most important phase of expert discovery occurs at the expert's deposition. To conduct an effective deposition, you must properly prepare for the examination by reviewing thoroughly all relevant documentation and studying the subject matter to ensure that you are sufficiently conversant with the technical aspects of the case to scrutinize the expert's testimony and respond with effective follow-up questions. If you have retained an expert of your own, review your strategy with that expert and ask that individual to provide additional questions. Not only will this provide effective questions designed to probe the bases for the opposing expert's testimony, it will enable your own expert to obtain important information which may be very helpful to his own opinions. If possible, make every effort to conduct the deposition of the opposing expert first and, if monetary considerations permit, have your own expert present at the deposition to provide helpful technical assistance.

While the substance of each deposition may differ, an effective discovery deposition should involve examinations on the following issues:

1. The expert's education, experience and qualifications. Although it may not be fruitful to highlight these at trial, the discovery deposition is your opportunity to probe the opposing expert's background without any risk that such a pursuit will impress the jury. In so doing, you may find certain experiences lacking, or, that your own expert has earned certain accolades which the deponent has yet to reach. Furthermore, while the deponent may have considerable expertise in the field generally, she may lack certain experiences specifically relevant to your case. The only way to determine this is to pursue the issue in deposition.

2. Ask the expert the nature and scope of his assignment. What was the expert retained for? Did opposing counsel retain the expert under circumstances which strongly suggested the nature of the desired opinions?

3. Determine the bases for the expert's opinions by inquiring into the precise materials which the expert has reviewed and into all other information sources. Prior to the deposition, you should subpoena all documents which the expert has reviewed or which form the bases for his opinions. At the deposition, you should not only question the expert on the effect of these materials, you should also determine what materials, information, or investigation the expert has not pursued.

4. Ask the expert whether he or she needs or has requested any additional information to render or to finalize the opinions. If the expert replies in the affirmative, you must reserve the right to re-depose the expert on any additional findings and opinions and you should insist that opposing counsel provide a supplemental expert report promptly.

5. Ask the expert what opinions he or she expects to provide on the witness stand. Make certain that you inquire into every possible opinion, its bases and rationale so that you leave little, if any, room for surprise at trial.

6. By probing the bases for the deponent's opinions, determine the limitations of these opinions. Would the expert render the same opinions under slightly different versions of the facts? If so, what factual assumptions must change for the deponent to render an opinion favorable to your client? Many experts have taken the witness stand for one side and unwittingly scored points for the other by making factual assumptions which the other side ultimately disproved.

7. Determine the expert's response to opposing theories and opinions. While you do not necessarily wish to prepare the deponent for your own expert's testimony, in most cases, he will go to trial after reviewing a transcript of his opponent's deposition. Thus, it makes sense to determine your opponent's strategy in attacking your own expert. While you should exercise care not to make important nuances of expert strategy too obvious, this will enable you to better prepare your own expert for trial.

8. Pursue impeachment issues. How much has the expert been paid to render his opinions in this case? What is the basis of compensation? Does the expert have a lengthy relationship with opposing counsel or the opposing party? How many times has the expert testified in court? Does she derive a substantial portion of her income from such testimony? Particularly in the medical field, there are several experts who derive a substantial amount of their income from "litigation support services" -- in many cases, through close association with the attorneys calling them. Do not forgo this opportunity to obtain effective impeachment material for trial.

The manner in which you pursue these issues will vary with your objectives for the deposition. In most cases, the goal of an expert's deposition is twofold: First, the deposition will enable you to learn the substance and underlying rationale of the deponent's testimony. Second, if the right issues are fully pursued, the deposition will "lock the expert into place," making it difficult or impossible for the witness to squirm out of a position on the witness stand without paying the penalty of impeachment for prior inconsistent statements.

When questioning the expert, you should insist that the deponent define even the seemingly most obvious of terms. Because expert witnesses frequently try to elude their attackers by resorting to semantic and definitional debates, your deposition should eliminate such debates by defining the expert's own terminology. Then, at the later trial, you should use the expert's own language on cross-examination. This will help to avoid the expert's petty quarrels with the specific language you used in questioning him.

Unless your objective at the deposition is to brow-beat the expert into submission and gain important leverage for settlement, you should conduct the deposition with great "deference" to the witness' expertise. If the expert feels that you have truly mastered the nuances of the case and have become fully conversant and comfortable with the intricate subject matter at hand, she will probably appear at trial exceedingly well-prepared for a hard-hitting cross-examination. Remember, playing "dumb" at deposition may allow you to look much smarter where it truly counts -- the trial.

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