Supreme Court 2012 Chief Justice Menis E. Ketchum
Expert Witness Discovery Should Be Abolished
by Chief Justice Menis E. Ketchum, II
Jury trials in civil cases are becoming remnants of the past. For instance, only 1.8 percent of the civil cases filed in federal court result in a jury trial. I don't have any statistics, but I would wager that fewer than 1% of the civil cases filed in West Virginia are tried before a jury. As a result, most lawyers who classify themselves as "trial lawyers" or "litigators" have no trial experience. Their experience lies in writing motions and interrogatories, taking depositions, and attending mediations. In reality, they have become discovery or mediation lawyers.
A main cause for the lack of jury trials is burdensome and expensive civil discovery. This results in a mountain of paper queries and transcripts. The cost it imposes on litigants cannot be justified.
The biggest waste of time and money under our discovery rules concerns expert witness discovery. In 41 years of trial practice, I cannot remember a single expert witness discovery deposition that provided anything of evidentiary value, if I already had the expert's detailed report, the supporting data, and the expert's qualifications. Whenever I had this information about my adversary's expert, it ended up being a waste of my time to fly to some faraway destination for a deposition to be prepared to cross examine the expert at trial. Moreover, it was a waste of my client's money.
When a criminal defendant goes to trial in West Virginia for first-degree murder, our rules do not provide for liberal discovery and depositions. Prosecutors and criminal defense lawyers cannot delay trial for years by filing discovery requests. They cannot bankrupt their opponent by deposing every witness, and every expert, for days on end.
Yet, even without pretrial discovery, prosecutors and criminal defense lawyers do very well in their cross-examination of lay and expert witnesses. I see this routinely in criminal appeals. But it is hard to judge the ability of so-called trial lawyers in civil cases because they do not present cases to juries. As a consequence, civil cases usually reach our Court on pre-trial discovery issues and rulings made by circuit judges on motions.
In order to cut down on the burden and expense of discovery, I propose that we amend the West Virginia Rules of Civil Procedure to eliminate discovery of experts who have been retained to give opinion testimony. To be clear, this is a personal proposal. The other members of the Court have not signed on, and I offer it to encourage discussion among members of the Bar.
The proposed rule B Rule 26(b)(4) B requires a retained expert to produce everything that a trial lawyer will need to adequately cross examine the expert at trial, and to prepare his opposition to this expert's testimony. In addition, the expert will be limited to testifying only about the opinions and information set forth in the expert's report.
Before rending your clothes or gnashing your teeth, please read the proposed rule and give it some thought:
PROPOSED W.VA. RULE OF CIVIL PROCEDURE 26(b)(4):
A. Expert witnesses. Kinds of experts. -- For the purpose of this rule, there are four kinds of experts:
- (1) Retained experts: a nonparty expert who is retained by a party or a party's attorney. A retained expert is engaged to review facts and offer opinion testimony on essential material elements of the claim at issue. A retained expert is an extended voice of the party and a proponent of the party's claim.
- (2) Reviewing employee expert: an employee of a party who has no connection with the events underlying the claim and has reviewed facts and information solely to offer opinions in the case.
- (3) Hybrid fact/expert witness: an expert that is connected with the factual events underlying the case and has opinions arising out of personal observations made in the normal course of duty. The hybrid expert may relay factual observations and express opinions flowing from those factual observations. Four examples of hybrid experts are: (a) treating physicians; (b) police called to an accident scene; (c) police reconstruction experts investigating in the course of employment; and (d) persons who interpret laboratory results collected in a hospital.
- (4) Advisory expert: an expert used by a party that will not testify at trial. This type of expert advises a party on litigation issues.
B. Disclosure. -- A party must disclose to the other parties the identity of any witnesses it may use at trial to present evidence under Rule of Evidence 702, 703 and 705. The disclosures must be made to the other parties at the time ordered by the court in its scheduling order or any amendment of the scheduling order. The disclosures apply to witnesses who may present testimony at any stage of the trial.
C. Scope of expert discovery. -- The depositions of retained experts who may testify at trial and the depositions of advisory experts are prohibited unless the court finds that extraordinary circumstances exist and orders that the expert's deposition be taken. Interrogatories and requests for admission to other parties concerning retained and advisory experts are prohibited. Depositions of reviewing employee experts and hybrid fact/expert witnesses are permitted, even if they have tendered or filed an expert witness report.
D. Expert reports. -- Unless otherwise stipulated, a retained expert or reviewing employee expert must prepare and sign a detailed report. The report must be provided to the other parties at the time set in the court's scheduling order. The expert's report must include:
- (1) A complete statement of all opinions the witness will express and the detailed facts upon which the opinion is premised;
- (2) An itemized listing of the data and information used in forming the opinion including, but not limited to, records, treatises, articles and other information; if the data or information is not readily available or is not contained in the record, the other parties must be provided a copy of the particularized data referenced in the report;
- (3) A list of all cases in which, during the previous ten years, the witness testified at trial or was deposed;
- (4) The curriculum vitae of the witness, a list of qualifications not included in the curriculum vitae, and a list of publications authored or co authored by the witness;
- (5) A statement of the compensation paid or to be paid for the study, work, and testimony in the case;
- (6) An itemized listing of all other cases in which the expert has been retained by the party that hired the expert or that party's insurer, lawyer, or law firm.
E. Limitations on expert trial testimony. -- An expert may only testify at trial as to the specific opinions and information set forth in the expert's report.
F. Lawyer-expert communication. -- Communications between an advisory expert or a retained expert and the party's lawyer, including letters and draft reports, are not discoverable.
G. Duration of depositions. -- Unless otherwise stipulated or ordered by the court, the deposition of a hybrid fact/expert witness, or a reviewing employee expert, shall be limited to three hours in a single day. If the party needs additional time, and the parties cannot agree, the court may allow additional time if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.
Courts are made for litigants. Litigants suffer when the cost of discovery becomes unreasonably expensive. Reducing the cost of expert discovery is a modest first step toward preserving the rights of all West Virginians to their day in court. In addition, lawyers will learn the art of cross-examining experts and witnesses before a jury rather than in a deposition room. Only then will the questioning of experts stop as to their social security number, the number of children they have, and other irrelevant topics.
I guess I pine for the days when lawyers actually tried civil lawsuits, and didn't have a file three feet thick full of interrogatories, motions and depositions in a rear-end whiplash case.