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Cases can be won and lost on how counsel and expert witnesses manage communications. Lawyers must know how to guide an expert through litigation. Failing to properly navigate draft reports and communications with experts can result in a damaged witness, preclusion or sanctions.
Under Connecticut law, lawyers must assume that every communication with an expert will be the subject of questions at deposition and trial.
Conn. Practice Book § 13-4 sets the parameters for discovery available by a disclosed expert:
the party disclosing an expert witness shall, upon the request of an opposing party, produce to all other parties all materials obtained, created and/or relied upon by the expert in connection with his or her opinions in the case within fourteen days prior to that expert’s deposition or within such other time frame determined in accordance with the Schedule for Expert Discovery prepared pursuant to subsection (g) of this section.
Nothing contained in this section shall impair the right of any party from exercising that party’s rights under the rules of practice to subpoena or to request production of any materials, to the extent otherwise discoverable, Conn. Practice Book § 13-4
The purpose of §13-4 which is to assist the opposing party in the preparation of his case, and to eliminate unfair surprise by furnishing the opposing party with the essential elements of a party’s claim and to assist in the preparation of the defendant’s case. Rules of discovery are designed to “make a trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” Wexler v. DeMaio, 280 Conn. 168, 188-90, 905 A.2d 1196 (2006) Grim v. Paggioli, 2011 Conn. Super. LEXIS 2374, 2 (Conn. Super. Ct. Sept. 13, 2011).
In pertinent part, Conn. Prac. Book P.B. § 13-2 provides that the discovery of information, documents, and the like which are “material to the subject matter” and “not privileged” may be obtained “if the disclosure sought would be of assistance in the prosecution or defense of the action” and the information sought “appears reasonably calculated to lead to the discovery of admissible evidence.” Conn. Podiatric Med. Ass’n v. Health Net of Conn., Inc., 2006 Conn. Super. LEXIS 452, 5 (Conn. Super. Ct. Feb. 1, 2006).
The right and opportunity to cross-examine an opposing party’s witness is an important, fundamental, and essential component of the adversarial method of resolving disputes; that right and opportunity should not be abridged or restricted absent clearly irrelevant inquiry or, more to the point, the establishment with specificity of a necessity to do so in order to assure the fairness and integrity of the proceeding. The right to fully and incisively cross-examine an adversary’s expert is particularly important Chemical v. Executive Management Co., 1995 Conn. Super. LEXIS 3429, 24, 1995 WL 774526 (Conn. Super. Ct. Oct. 20, 1995).
Draft reports, communications with counsel, and engagement letters are all discoverable under Connecticut law.
Federal Rule 26 applies to expert disclosures in Federal Court. Unlike Connecticut law, Federal Rule 26 provides work product protections to a testifying expert’s communications with counsel. All communications, aside from exceptions outlined in 26(2)(4)(C) (i-iii) between retaining counsel are protected. Draft expert reports are also protected.
Federal Rule 26(2), “Disclosure of Expert Testimony” in relevant part, reads as follows:
(4) Trial Preparation: Experts.
(A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.
(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert’s study or testimony;
(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
Federal Rule 26’s provisions regarding experts were enacted to reduce litigation costs, allow experts and retained counsel to communicate freely by avoiding wasteful measures designed to minimize communications.
In order to ethically handle litigation, counsel must understand both State and Federal rules regarding expert disclosure and discovery. The difference between the State and Federal rules matters in the area of expert witnesses.
TicketNetwork is claiming the denial of the motion to dismiss as a victory. The Bushnell was unable to be reached for comment.
“We are pleased with the judge’s decision as this is the victory for the public,” Vaccaro said in a press release. “The outcome of this case demonstrates that truth outweighs fabrication of information in the court of law.“ CT NewsJunkie
In so far as winning a motion is better than losing a motion – Vaccaro should be pleased with Judge Rittenband’s ruling not to dismiss his case against the Bushnell.
A motion to dismiss is the way a party contests the Court’s jurisdiction to hear a matter. It is a threshold matter that has nothing to do with the merits of a case:
The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record. Conn. Prac., Super. Ct. Civ. Rules § 10-31
In my opinion, Vaccaro’s claims that “the judge’s decision as this is the victory for the public” and “the outcome of this case demonstrates that truth outweighs fabrication of information in the court of law” make for good copy. His case merely survived the first attack by the defendant.
Given how contentious this case is – it seems likely that the parties are going to take a walk through the practice book. Look for a motion to strike to be filed (to test the legal sufficiency of the claims) and a motion for summary judgment to be filed. It would be unusual for a case like this to be tossed out of court on a motion (though, I have no opinion on this as I have not read through all of the pleadings nor have I researched all of the relevant law) – generally the superior court errs on giving parties their day in court.
Expect this matter to go to trial or settle before that.
Scheduling will consume much of your time. Even in the age of electronic calendars mistakes happen.
For example, this summer, I went to a pretrial conference and opposing counsel was no where to be found. I called his office and they tried to locate him. He ended up arriving an hour and a half later. I wasn’t mad. It happens to the best of us. But I did waste an hour and a half of my time.
Later this summer, I got a call from another lawyer saying “where are you?” to which my response was “at my desk”. He politely informed me that I was supposed to be at a pretrial in Bridgeport. I frantically looked through my file – I did not receive a calendar notice. When I told this to the clerk he said we sent one and I said “yeah but I don’t have it”. Maybe the notice got lost in the mail or maybe it was misfiled in my office – I’ve never found it. Needless to say the pretrial didn’t go forward. I couldn’t attend an event that I was unaware of.
In practice, your clients will forget court dates. Opposing counsel will forget court dates. Scheduling mishaps happen and they shouldn’t.
The solution is simple – call opposing counsel a day or two before an event be it a court date or a deposition. Otherwise you risk finding yourself with court reporter sitting in a room and no witness to depose.
“Ryan, I’m a man of my word. I promise you there’s something fatally wrong with your case. I’m going to win.”
Those were the words of opposing counsel. Hey repeated them to me about a dozen times over the course of about 15 months. When he first made that statement, I immediately looked over the file. When I brought the case, I thought I was on solid ground both legally and factually. I poured over my evidence. I did more research. No matter what I did, I couldn’t figure out for the life of me what he was talking about.
You may be thinking that this was a bluff by opposing counsel. Knowing counsel, I refuse to believe it. I’m convinced he thought there was something seriously wrong with my case and he was going to wait to trial to sandbag me with it.
Every time he’d say there was something wrong with my case, my response was “what”. He’d laugh and snicker “that’s for me to know and you to find out”.
I’m a reasonable guy and the last thing I want to do is put a lot of work in on a file and lose for my client. I’d much rather have something pointed out to me, take it to the client, and advise the client that the case isn’t as strong as we thought. This causes sensible clients to lower or withdraw their demands.
He put on a vigorous defense of his client. He objected to everything. Told me he was going to take me on a walk through the practice book and he did. All the while, he refused to tell me what he believed the defect in my case was. He just kept repeating “trust me, you’ve got major problems”.
After the first review of the file, I ignored his threats. They were wasted on me. If there was a problem with my case (which I didn’t think there was) then I couldn’t see it. I couldn’t advise my client to lower its demands. As a result, the litigation escalated and both clients dug in their feet as costs rose.
The one day, I get a call from another lawyer. He tells me that he is now representing the defendant in my case. In one phone call, we settle the matter.
To this day, I never found out what opposing counsel thought was wrong with my case. If he was right, and I think he believed he was, his client never got any value from me or my client for it.
To get any value in a case a lawyer needs to convince either a judge, a jury, opposing counsel, or an opposing party that there is some risk. Most cases settle. Sitting on information with modern discovery rules is practically impossible if opposing counsel does his job.
I should start by saying that I have nothing but the utmost respect for the Judicial Branch in general, and the Appellate Court in particular. On the occasions when I have had to file things at the Appellate Court clerk’s office, everyone has been friendly and helpful in explaining the ways in which my filings invariably fail to comply with Practice Book formatting regulations. They never laugh or scorn (“Half-inch left margins? GET OUT!”). They even have a form with check boxes that they fill out and give to you to tell you how you screwed up.
But the existence of that form is telling, and what it tells you is this: if you are filing anything with the Appellate Court, you will screw up. Few things are as universally agreed upon among lawyers in this state as the difficulty and drudgery involved in filing properly with the Appellate Court.
And for solo practitioners, especially ones who, like me, don’t handle a lot of appeals in their practice and don’t have the benefit of an experienced paralegal, the cost of printing fifteen bound copies of briefs – and re-printing them after screwing them up – coupled with the time needed to check and re-check the many rules in the Practice Book, can be aversive if not prohibitive.
Case in point: Monday was the deadline for me to file briefs at the Appellate Court in a juvenile delinquency case where I represented the child when I worked in the public defender’s office at Hartford Juvenile Court. (I was laid off when the first SEBAC deal was rejected, but I kept the appeal on contract.) My brief was all written and formatted, after much careful review of Sections 67-1 through -11 of the Practice Book, and I went to Kinko’s to get my 18 copies (original and 15 copies for the court, one for opposing counsel, and one for the trial judge). After binding, heavy stock blue cover sheets, and everything else, it cost me about $100 for a 20-page brief with a short appendix. It was barely 10:30 in the morning and I was ready to go.
Well, not quite. You see, I read the Practice Book section that required that all print be only in Arial or Univers, and exclusively in 12-point, but I failed to consider the fact that the footnotes should, therefore, also be in 12-point. This was, I should be quite clear, MY FAULT.
Lawyers are trained to rely, first and foremost, on the precise and obvious meaning of words, and I should have done that. But somehow, I just assumed that 12-point font in the body meant 10-point font in the notes – I mean, they’re footnotes! They’re supposed to be smaller so you can ignore them more easily, right? No. Wrong. 12-point means 12-point, and the clerk politely sent me packing, eyes downcast as I lugged my now useless box of errant briefs back to the car.
Of course, I recovered. Several hours and another $100 later, I was back, the briefs were filed, and justice marched happily on. But I was left asking, why should it work this way? I have no objection to the highly specific formatting requirements and the clerks’ rigid enforcement of them. It is surely better to apply the rules strictly and uniformly than to face a flurry of equal protection claims from litigants who feel that the rules were bent for others and not for them.
And I suppose there’s nothing wrong with requiring 15 hard copies. Plenty of people still like to do their heavy reading on paper, and it seems wise enough to place the burden of printing and collating on litigants, the vast majority of whom can probably afford it better than the court can. (It does occur to me, though, that it wouldn’t take too many instances of $100 blown on botched formatting before you could raise enough money to buy at least 15 Kindles for the Appellate Court.)
But here’s what I don’t get: why can’t we file one draft electronically for approval, ahead of time? The clerks could review it just like they do in person, and maybe faster, since there is probably software that could detect obvious nonconformities like my 10-point footnotes immediately. The litigants could correct errors quickly, without a trip to the clerk’s office and without all that needless printing. And when the litigants showed up in person, the clerks could just stamp the briefs and be done.
I realize this isn’t a burning, big-time problem. (A friend on Twitter responded to my grousing with the hashtag #firstworldlawyerproblems.) As I’ve said, most litigants have enough money at stake that an extra $100 in printing isn’t worth a second thought, or they retain firms with paralegals who have Practice Book Section 67-1 tattooed on their abdomens, Tupac style.
But not all of them. Plenty of small businesses and individuals retain small or solo firms where the lawyers do their own filing. For homeowners in bankruptcy and foreclosure matters, the initial filing fee may have been painful enough, without the addition of extra printing costs.
Or look at my client, whose filing fee was waived due to indigency: he is a fifteen-year-old boy currently enjoying a non-voluntary bout of state hospitality at the Connecticut Juvenile Training School. His appeal concerns whether children convicted of delinquencies and sent to the Training School should get credit off their sentences for time served – an important issue (I think) that affects a lot of kids.
And surely he isn’t the only poor, underresourced litigant to present what might be an important and law-changing case to the appellate system. Isn’t that reason enough to make the process a little less onerous and costly?
Josh Michtom is a child protection lawyer and Spanish translator based in West Hartford.
It was November. I was going to get a rotisserie chicken at Costco.
I was in law school. At the time, I was deeply engrossed in preparing for the National Moot Court competition. The issue that year was mail fraud. Mail fraud and not much else was on my mind.
In a moment of clarity, I knew I had to eat. For $6.99 I could get a rotisserie chicken at Costco. It was tasty, prepared, nutritious, and cheap. It would serve as dinner then lunch then dinner again.
That day, I pulled into the Costco parking lot. I was eager to get my chicken. As I walked into Costco the greeter was there to check my membership card. I had been to Costco many times before. They always checked my cards. My card was in my wallet.
As I fumbled for my Costco ID Card the greeter at the door said to me, “son, have you been here before?”
I said “yes”.
In his old man voice he said “when did you know you were coming here?”
I was struck by how simple his question was. This was more than your average conversation with a greeter.
“Ah….ummmm…..here’s my card” I responded.
He then said “You knew you were coming here from at least the moment you turned off your car in the parking lot. You’ve been here before. You knew you had to show your ID. Next time when you get out of your car, take your ID out of your wallet, so you’re not standing here fumbling for your ID”.
This may have been the best old man lecture I have ever received. He had a point. I’ve never gone into Coscto without my ID in hand since that day.
What does any of this have to do with court?
Instead of old men and IDs there are judicial marshals and metal detectors. I’m going to go all old man here for a second. As you are waiting in line, instead of staring off blankly or checking facebook – take the change out of your pocket. If you have a large belt buckle, take it off prior to it being your turn in line. Begin gathering anything that you think may set off a metal detector prior to it being your turn to pass through.
Each time I go to court, I see gross violations of the Costco rule. I forgive non-lawyers. They may not frequent courts and have something weighty on their minds. But lawyers, for the love of all that’s good, please follow the Costco Rule.
The Costco rule also applies to airlines, sporting events, and grocery store lines.
There she was. Standing before a judge. Holding her baby. The baby looked to be about 10 months old. I know what a 10 month old looks like. One lives in my house.
The landlord was representing himself. He told the judge that the young woman failed to make payments pursuant to a stipulated agreement signed several months ago. The penalty for failing to make such payments is eviction.
The judge asked the woman if the landlord was correct.
The young woman admitted that she failed to make a scheduled payment. This sealed her fate and the fate.
“But please judge, I just need more time. You see, I’ve applied for assistance and they’re processing my application but it hasn’t gone through yet. If I’m evicted I have nowhere to go. My baby is going to be homeless”.
The law is the law. The law in the young woman’s case was simple. Fail to make payments and you’re homeless. Your baby, too. Both the young woman and the landlord knew the law. They knew it when they signed the agreement several months prior. They knew it when they walked into court that morning.
Perhaps that’s why the woman had her young daughter with her. She knew what was going to happen. She hoped that holding a baby would somehow soften the blow. Or perhaps she had no one to watch the baby for her. Either way, she stood there clutching a 10 month old, as the judge prepared to make his ruling from the bench.
The judge did the right thing. He followed the law. Even if the outcome is harsh, society is best served when judges follow the law and apply it fairly to the facts.
This judge ordered her out of the apartment. Both her and baby had until Friday to move their stuff before a marshal and movers came and moved it for them. The practice of law is not for the faint of heart.
The woman turned around after the judge had ruled. Her face was pale. Her baby was going to be homeless on Friday. The baby continued to play with her rattle.
As I waited for my case to be called, I thought of my daughter. What if she had been born under different circumstances? What if she was about to be homeless?
It was with a heavy heart that I stood up and argued my case. Fortunately, on that day, I was on the side of a commercial tenant. I was comforted by the fact that no matter what happened in my case, it wasn’t going to result in a homeless child.
When I got home late that night, my daughter was sleeping. She was comfortable. I went in her room and did something I almost never do – I woke a sleeping baby. I picked her up. I stole a moment with her. I kissed her on her head and then gently placed her back in her crib.