Retaining and Disclosing Expert Witnesses: A Global Perspective

Abstract

IN 2010, Federal Rule of Civil Procedure 26 was amended to afford greater protections to draft expert materials and attorney-expert communications in order to better balance existing disclosure and reporting requirements. Much has since been written concerning the 2010 amendments and the case law that has interpreted them thus far. This article examines the provisions of Rule 26 through a broader lens than simply focusing on the amendments. The authors here evaluate the expert disclosure rules from a more global perspective, starting with the premise that our rules seemed to have developed in the context of and as a direct response to the adversarial nature of the American discovery process. That conclusion seems to be supported by the research underlying this paper. In a general sense, we have observed that the differences between rules and practices for expert witnesses in the United States, England, and China have evolved based in large part upon controls discovery, and plays the role of factfinder. The U.S. and England are common law systems in which the parties drive discovery, whereas China is predominantly a civil law system with a judge at the helm throughout the litigation process. Each nation has adopted procedures for the use and disclosure of expert witnesses tailored to the needs of each system of justice, however, each country's procedures have attributes that could be imported into another's system to remedy current procedural weaknesses. We are already seeing this type of exchange of common law and civil law procedures in England and China, and it is not inconceivable that extending these principles to the U.S. could increase efficiency, decrease costs, and arguably smooth out some inconsistencies in our civil litigation system. This article seeks to compare the rules governing the use and disclosure of experts under the Federal Rules of Civil Procedure with their recently amended counterparts in England and China. To provide context, we first review the nature of the systems in which these rules exist, namely, their adversarial versus judge-driven discovery processes. We then examine the circumstances under which an expert is permitted to become involved in litigation, and the necessary expert qualifications. We compare the roles of the parties and the judges with respect to selecting experts, the duties of experts to the parties and to the court, and the responsibilities of experts to provide reports or testimony to litigants and judges. Finally, we remark briefly on the possible importation of the most successful principles and practices from other judicial models into the Federal Rules of Civil Procedure to improve our current system. I. Expert Retention and Disclosure in the United States Two key tenets of the American civil justice system are its adversarial nature and its use of lay juries as factfinders. At the trial stage, the judge functions as an evidentiary gatekeeper, determining what evidence the jury may consider on the way to making factual determinations. The gatekeeping function is of particular importance with respect to expert evidence, where the judge first assesses the reliability of the expert's methodology in reaching his or her opinions before releasing such potentially influential material to the jury. A. Expert Selection and Retention The federal expert disclosure rules distinguish between experts plan to testify and experts serve as behindthe-scenes consultants. Federal Rule of Evidence 702 defines an expert witness as someone who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if his knowledge will aid the trier of fact (typically a jury), and if it meets a certain threshold standard of reliability. (1) The Advisory Committee Notes make clear that although Rule 702 expressly refers to scientific or technical knowledge, it is not restricted to its literal terms and extends to anyone may have specialized knowledge. …