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November 2010

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This article is in the news archives --- for current news go to the Third Branch News.


Rules Recommendations Take Effect December 1, 2010

Rule 26 Amendment Affects Expert Witnesses

Amendments to the Federal Rules—ranging from simple technical and conforming language to significant changes in discovery and expert witnesses—take effect on December 1.

Amended Rules

Among the amended Rules effective December 1, 2010, are:

  • Bankruptcy Rule 1007: shortens time for a debtor to file a list of creditors after the entry of an order for relief in an involuntary case, and extends the time for individual Chapter 7 debtors to file a statement of completion of course in personal financial management.
  • Bankruptcy Rule 1019: with some exceptions, a new time period to object to a claim of exemption arises when a case is converted to Chapter 7 from Chapter 11, 12, or 13.
  • Civil Rule 56: makes procedures for presenting and deciding summary-judgment motions more consistent across districts, and closes the gap that developed between the Rule text and actual practice.
  • Criminal Rule 3.1: clarifies standard and burden of proof regarding the release or detention of a person on probation or supervised release.
  • Evidence Rule 804: extends corroborating circumstances requirement to all declarations against penal interest offered in criminal cases.

For complete information on the new Federal Rules effective December 1, visit the Federal Rulemaking website at www.uscourts.gov/RulesAndPolicies/

Among the changes is an amendment to Civil Rule 26 that will have a significant impact on how lawyers use expert witnesses.  The amendment extends work-product protection to draft reports by testifying expert witnesses, and, with some specified exceptions, communications between attorneys and their experts.

Before the change, Rule 26 had been interpreted to require reports from all witnesses offering expert testimony, and to allow discovery of all communications between counsel and expert witnesses and all draft expert reports. As a result, lawyers and experts often took elaborate steps to avoid creating any discoverable record. At the same time, they invested time and effort in discovering the other side’s drafts and communications. 

“The artificial and wasteful discovery-avoidance practices include lawyers hiring two sets of experts—one for consultation, to do the work and develop the opinions, and one to provide the testimony—to avoid creating a discoverable record of the collaborative interaction with the experts,” said Judge Lee Rosenthal, chair of the Judicial Conference Committee on Rules of Practice and Procedure. To sidestep the rule requirement, experts have often avoided taking notes or making records of any preliminary analyses or opinions, or producing any draft report. The only written record has been the final report.

This practice added to the cost and burden of discovery, impeded the efficient and proper use of experts by both sides, needlessly lengthened depositions, detracted from cross-examination into the merits of the expert’s opinions, made some qualified individuals unwilling to serve as experts, and may have reduced the quality of an expert’s work.

Nevertheless, discovery into the bases of an expert’s opinion is critical. And the best way to scrutinize the merits of an expert’s opinion, the Advisory Committee on the Civil Rules of Procedure concluded, is by cross-examination “on the substantive strength and weaknesses of the opinions and by presenting evidence bearing on those issues.” 

“The artificial and wasteful discovery-avoidance practices include lawyers hiring two sets of experts —one for consultation, to do the work and develop the opinions, and one to provide the testimony— to avoid creating a discoverable record of the collaborative interaction with the experts”

—Judge Lee Rosenthal

The amended rule specifically provides that the following communications between lawyer and expert are open to discovery: 1) compensation for the expert’s study or testimony; 2) facts or data provided by the lawyer that the expert considered in forming opinions; and 3) assumptions provided to the expert by the lawyer that the expert relied upon in forming an opinion.

The amendments to Rule 26 are supported by lawyers and bar organizations, including the American Bar Association, the Council of the American Bar Association Section on Litigation, the American College of Trial Lawyers, the American Association for Justice, the Federal Magistrate Judges’ Association, the Lawyers for Civil Justice, and the U.S. Department of Justice, among others.  

The Rules-enabling process is a multi-step process that involves not only Judicial Conference approval, but also publication and opportunity for public comment, approval by the Supreme Court, and finally, a statutory period of at least seven months for Congress to act on any rules. If Congress does not reject, modify, or deter the rules during that period, they take effect as a matter of law on December 1.