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Powerful Weapon

The role of the expert in civil litigation has changed, and these witnesses have become more active members of the legal team

By Steven Fuld & Steven G. Pearl

The role of the expert witness in civil litigation is changing. The question is whether advocates will be prepared for the change or be shocked when opposing counsel brings his or her expert witness to a client's deposition.

Attorneys dealing with complex and technical issues long have used expert witnesses, but experts can do far more than give opinions in court. Their role is evolving from simply reviewing documents and undergoing deposition at the last possible date before trial to serving as active members of the legal team.

A qualified expert's insight can provide savvy counsel with a significant advantage throughout the litigation process. An active expert not only can review what has been provided by the opposition but also can assist in its analysis with a critical eye to determine what additional documents should be demanded. The expert can assist in preparing interrogatories and deposition and trial questions that may be overlooked or poorly understood absent in the specific industry knowledge that an expert provides.

Experts often attend the depositions of opposing experts, helping counsel with follow-up questions. More and more, attorneys in technically complex matters are using expert witnesses in the opposing parties' depositions for the same purpose.

Where the value of a case justifies the expense, using an expert witness in an opposing party's deposition can give counsel a powerful tool for nailing down the party's testimony and ferreting out inconsistencies.

But will an inexperienced opposing counsel balk when an expert arrives at the client's deposition?

While the Discovery Act does not state specifically who may or may no attend a deposition, it does recognize that parties and their attorneys have the right to be present.

In Willoughby v. Superior Court, 172 Cal. App. 3d 890 (Cal. App. 1st Dist. 1985), the 1st District Court of Appeal held that a court has no power to bar a party from attending another's deposition, even if his or her presence will cause the deponent stress and annoyance.

The court explained that to prevent a client's presence during the cross-examination of the opposing party at deposition would impair significantly and unreasonably trial counsel's ability to represent his or her client effectively. In many cases, it is critical for counsel to be able to confer with client at his or her side concerning responses being received during the course of a deposition.

To preclude this type of attorney-client conferring and alternatively to require the attorney to leave the deposition room to confer with his or her client outside or make contact by phone would disrupt the discovery process and would constitute a wide departure from the existing rights of discovery. Willoughby.

The same reasoning applies where counsel deems it necessary for his or her expert to be present in deposition.

Given a Sufficiently complex area of inquiry, it may be necessary for counsel to be able to confer with his or her expert concerning responses being received during the deposition. Requiring the attorney to leave the deposition room to confer with his or her expert or to make contact by phone would disrupt the discovery processes and would constitute a wide departure from the existing rights of discovery.

The basic litigation-practice guides recognize the right to have an expert present at deposition. "Civil Discovery Practice in California," published by CEB, states that, in some cases, the examiner may wish a nonparty, such as an expert witness or consultant, to attend to assists on follow-up questions or suggest additional areas of inquiry, particularly if the testimony will touch on very technical points." Peyrat, "Civil Discovery Practice in California," California Continuing Education of the Bar (1988) Section 3.5, 139-40.

Similarly, Weil and Brown state that it may be necessary or efficient to have a nonparty attend: for example, a caregiver for the deponent or a consultant to hear the testimony of an opposing expert. Weil and Brown, "California Practice Guide: Civil Procedure Before Trial" (2000). The Rutter Group, Section 8:698, 8E-82.1.

Counsel seeking the exclusion of an expert witness from his or her client's deposition may attempt to rely on Code of Civil Procedure Section 2025(i), which provides that the court, for good cause shown, may make any order that justice requires to protect any party, deponent or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

Section 2025 places the burden on the moving party to show that the expert's presence will cause unwarranted annoyance, embarrassment, or oppression or undue burden and expense. In the normal course, there is no reason to believe that an expert's presence will cause such annoyance, and absent such a showing, the protective order must be denied.

The fact that the plaintiff's expert will help counsel conduct a more-thorough deposition certainly does not constitute such unwarranted annoyance, embarrassment or oppression, or undue burden and expense. Absent such a showing by the defendant, the court has no authority to grant a protective order. See Meritplan Insurance Co. v. Superior Court, 124 Cal. App. 3d 237, 242 (1981); abuse of discretion to issue "blanket" protective order before deposition.

Given that it is the goal of the deposing counsel to have the deponent state the truth as opposed to well-rehearsed answers to the tough questions, the expert can give the deposing attorney a critical edge in meeting the needs of the client by offering real-time suggestions for additional lines of questioning. This, combined with the judicious use of videography, can go a long way in collecting impeachable testimony.

In litigation involving complex technical matters, it is not unusual for opposing experts to nullify each other, as the jury often gives each equal weight. This fact further reinforces the significance of the parties' pretrial and trial testimony. The strength of a well-put-together video, guided by the appropriate expert witness, can make a compelling argument to the jury.

The strategy of early and active engagement of experts does increase the costs; however, the potential benefits can far outweigh these costs. By expanding the legal team, counsel is providing his or her client with the most effective representation possible. Given the potential for significant importance of the matter to the prevailing party, this makes for a prudent investment in the case.

This strategy likely will be embraced more quickly by the plaintiffs' bar. In time, defense firms and their insurers will have to adapt to this strategy in order to represent their clients fully and completely.