Trial Tip 85

Roy’s Trial Law “TIPS”——Tip # 85

by Roy D. Wasson
Board Certified in Appellate Practice
Fellow of the Academy of Florida Trial Lawyers


A.  Introduction:

Most trial lawyers hate having their cases removed to federal court, for a variety of reasons, some which are these:  We prefer to have face-to-face hearings in state court over having motions decided on the written documents.  Many of us are more familiar with the Rules of Civil Procedure in state court than in federal court.  The summary judgment standard is easier for defendants to meet in federal court.  Several years ago it was hard to get to trial in federal court, and now the pendulum has swung too far the other way in some districts: trials are being set on a “rocket docket” with inadequate time for discovery and other preparation.

One critical disadvantage to being in federal court is the strict standard for disclosure of expert opinions early in the litigation.  Unlike state court, where the Plaintiff wait for the defense to propound expert witness interrogatories, and then can initially disclose only a bare-bones summary of the expert’s opinions and bases therefor, federal court requires full disclosure at the early stage of litigation, and plaintiffs failing to fully comply can have their experts stricken before the close of discovery.  Don’t let this happen to you.

B.  Initial Expert Disclosure Requirements of Rule 26:

Federal Rule of Civil Procedure 26(a) provides in pertinent part as follows:

 Required Disclosures.
(1) Initial Disclosure.
          (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

*    *    *

(2) Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report–prepared and signed by the witness–if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;