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Expert Report or Expert Deposition -- You Don't Get Both

November 24, 2018

 

As you near the end of fact discovery, your Utah defense counsel has likely explained that you need to "elect" whether to take an expert's deposition or whether you want a written report from that expert.  If you handle claims in other states, this "election" process likely sounds odd and you're forced to ask why can't we get both?  The fact is, you get one or the other, but not both.

 

Utah's expert discovery rules are unique, perhaps the most unique of all 50 states.  Several years ago, our Utah Supreme Court undertook a broad overhaul of how discovery is conducted.  The aim, we were told, was to contain litigation costs and to force parties and attorneys to focus early on what is needed to prosecute or defend a case. 

 

We were told the cost of civil litigation was too costly because lawyers and clients always chose to depose every expert thus driving up litigation costs.  I've tried cases under both systems and am not convinced we save much time/money under the "proportionality" model.  

 

 

For years, when fact discovery completed, it was standard practice in this jurisdiction that Plaintiff would disclose her expert witnesses and reports and, 30 days thereafter, the defense would designate it's experts and reports.  The parties then routinely set and took expert depositions with little or no limitation on the scope of the deposition, the length of it, the cost of it, and how many depositions could be taken.  

 

Under this "new" model, when fact discovery is completed, you elect either a deposition or a report. The idea is discovery is to be "proportional" to the claimed damages.   The expert report, theoretically, is to contain all opinions and bases for each.  The committee, in its notes, were careful to eliminate "boilerplate" designations as sufficient.  We were told, if it isn't in the report, our judiciary is trained to disallow the expert's opinions.   

 

Our voices were heard and opinions stated about whether the new "system" would work.  In part, our concern was for non-retained experts, those experts who were not specifically retained for the litigation but who, nonetheless, would be offering expert opinions at trial.  The committee's approach was a fair one, allowing depositions of the most commonly used non-retained experts (i.e. treating medical doctors), but for client experts (i.e. in construction cases, for example) or for employee experts (i.e. subject matter experts who are employees of the company) the rule appeared gray.

 

As with any substantive rule change, the lawyers adapted and began to use the rules to his/her advantage in every case.  We no longer see the "scorched earth" approach to experts we once did.  Experienced attorneys have learned which type of experts need to be deposed and which subject matter experts can prepare reports.  The key, under the "proportionality" model is to know and trust your defense counsel.  

 

Not every experts' deposition is needed even your case is going to trial.  Not every liability expert needs to be subject to hours of questions only to learn what he/she stated in their summary.  Some experts, whose depositions were routinely taken before, are almost never deposed.  Some experts may be less known/used, or may not be as "battle tested".  This doesn't mean you won't have a good expert for trial, but it may impact the decision whether to elect a report or a deposition.  

 

It's true that there will be times when parties can stipulate to both or, in the alternative, when counsel can seek leave for both.   This is rare and not the usual custom and practice.  

 

As your case gets to this critical juncture, be sure to stay in regular contact with your counsel.  Have her/him explain the why a certain expert's report was requested, or why a deposition was elected.  Have him/her explain why a video-conference deposition of an expert is or is not preferable.  Have counsel document his/her decision making in reports in the file. 

 

The decisions here are collaborative and all input is welcome, but be certain you know why a report was elected in your case v. a deposition and be certain that is documented properly in your file.

 

It's a new world when it comes to experts.  Electing a deposition or a report is a major decision to be discussed jointly with counsel.  Just remember, when you reach expert discovery in Utah, you don't get both.

 

EXPERIENCE | INTEGRITY | STRENGTH

 

 

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