The Litigation Process
In the event you are requested by an employer or retained as a third party to act as an expert witness in litigation, it is important that you understand the general process. This section provides a brief outline of the litigation process as generally followed in the United States and many other countries from the viewpoint of a practicing expert witness. When an action is filed, both sides begin to prepare their cases. To obtain the information that is necessary to support each side’s contentions, the “discovery process” is initiated. This process involves the gathering of information from a variety of sources, including the opposing party. The discovery process may include requesting information and reports from the opposing side, setting up inspections and testing by all parties witnessed, performing searches for information that is relevant to the case, and interviewing all parties involved in the case. There are rules and time limitations concerning discovery that vary among jurisdictions, which the expert should become familiar with in order to ensure that time constraints are observed and that no rules of discovery relating to expert witness activities are violated. Reports may be prepared at the request of attorneys to assist them in supporting their position in the case. In many cases, the plaintiff’s attorneys will request written reports from expert witnesses to use in obtaining information from the defense. In some jurisdictions, experts must prepare reports including supporting facts and opinions that are submitted to the court prior to trial. These reports are then distributed to the litigants for use in trial preparation. In many cases, an expert’s reports of investigations will be protected from discovery until the person is designated as an expert for trial. Protection of reports from discovery varies greatly among jurisdictions, and the experts must always assume that their reports will be read by the opposing parties at some point in the litigation process, and that they also could be shown to the jury. Designation of experts is the formal process by which each side reveals those whom they plan to present as experts at trial. The designation permits the opposing side to review the qualifications and background of the person designated. In many cases, research is done on the expert to determine what cases they have worked on previously as well as their success rate, and to read reviews of their performance. In a process that is related to expert designation, attorneys may work with the experts whom they have retained, to develop a declaration of the expert’s opinions concerning the case in order to support efforts to reach a settlement of the case before going to trial. In most jurisdictions, depositions are taken in which each side is allowed to question the opposing expert(s). This is done under oath, usually in the opposing attorney’s office. The proceedings are recorded by a court reporter, and a formal transcript of the deposition is produced and provided to all sides. The expert is required to bring all notes and materials reviewed in forming opinions to the deposition for inspection by the opposing attorney. During the deposition, the expert is questioned on his background, qualifications to provide opinions on the case in question, his opinions, how he has arrived at his opinions, and the facts supporting those opinions. The attorney who retained the expert will accompany him and will have the option of objecting to questions or comments made by the deposing attorney. In some cases, the expert will be instructed not to answer certain questions posed by the deposing attorney.