As every litigator is certainly aware, it is important for expert witnesses to provide the evidence necessary to satisfy your standard of proof or to provide evidence in order to counteract attacks on the cause. It is also important to interact with your expert witnesses. This includes:
communications to maintain an expert witness;
communications to provide them with case-specific information so that they may express their opinions; and
communications to provide science, technological, professional texts, treaties, journals or similar publications to assist the expert in forming his or her opinion.
In addition, a lawyer can communicate with an expert solely for the purpose of obtaining advisory opinions.
An expert witness shall be described as a person who has “special knowledge, skill, experience, training or education sufficient to qualify him or her as an expert on the subject to which his or her testimony relates. Once eligible, an expert may request an opinion on a subject that is so beyond the common experience that the opinion of an expert can assist a trier. Simply put, experts possess immense influence in litigation, and the attorney’s contact with them should be deliberate and strategic.
The primary problem in the use of experts is: What communications are covered by the work-product doctrine of the attorney? Pursuant to the Code of Civil Procedure, Section 2034.210, Subdivision (c), where an effective request has been made pursuant to Subdivision (a) of Section 2034.210, the party must produce, in the process of forming its opinion, “all discoverable reports and writings, if any.” However, no description of “discoverable” can be found in Sections 2034.010-2034.710 of the Code of Civil Procedure. Once an expert has been appointed pursuant to Section 2034.210, all of the expert’s present and prior views, as well as any correspondence that the expert might have had with the counsel, clients, other retained experts, and any expert notes or documentation given to the expert may be disclosed.
When it becomes fairly clear that an expert gives his professional opinion as a witness on a material matter in question, his opinion has become a factor in the case. At that point, the specialist ceased to be simply a consultant and became a litigator, one to be judged along with others. Such an assessment shall reasonably require sufficient pre-trial discovery.
An expert can be cross-examined on the “subject on which his or her opinion is based and the reasons for his or her opinion”. This involves correspondence with the prosecutor making those communications discoverable. Such correspondence will naturally involve written reports of a consultative sort.
One of the aims of the work-product doctrine is to ensure that lawyers have the privacy required to plan cases “with due diligence and to investigate not only the favorable but the unfavorable aspects” of their cases. Another aim is to ‘prevent lawyers from taking unfair advantage of their adversary’s industry and efforts.
The restriction on expert discovery enforced by the work-product doctrine of a lawyer can be essential to the advancement of a lawsuit. It might be appropriate to consult an expert on how to prepare pleadings, how to cross-examine opposing experts and other strategic considerations.
The restriction of what is “discoverable” in the work-product doctrine with respect to experts is presumptively focused on National Steel Prods. Co. v. Supreme Court. In National Steel, an expert had prepared an engineering study evaluating a metal building to support counsel in a previously unrelated New York case, arguing that a building had been negligently built and constructed.
National Steel opposed the ruling of the court allowing the disclosure of an expert’s prior study based on client right, work-product theory, and significance. In doing so, the National Steel Court set out a three-part test to determine the applicability of the work-product theory of the counsel. The first element includes a camera analysis by the judge to determine if the expert report meets the legislative definition of Section 2018030 (a). If so, the report “cannot be found under any circumstances.” All sections of the report that are not “printings, conclusions, opinions or legal research or theories” of the lawyers are subject to Parts 2 and 3 of the camera inspection. In section two, a decision should be made as to whether parts or all of the reports are of an advisory nature and thus fall under the competence of the work-product doctrine. The pieces of the study that are advisory are not discoverable. The expert report shall be advisory if it is intended to assist the prosecutor in the preparation of the pleadings, the procedure of the presentation of the evidence and the cross-examination of the opposing expert witnesses. Sections that are not discoverable, if easily isolated, are discoverable. In part three of the test, whether any advisory portions of the report subject to a qualified work product are observable is decided by balancing a good reason for discovery against the principles of the work-product doctrine. Such a good cause can entail unfair discrimination or injustice. Good cause, of course, necessarily means calling an expert as a witness.
Taken away from these cases is that the lawyer’s work-product doctrine can be a powerful shield in defending the attorney’s tactics, arguments, and interpretation of the case. The Court would not, however, recognize the attempted use of the lawyer’s work product as a sword to remove experts and expert testimony. A good understanding of what is and cannot be found is key to the successful prosecution of your case.