Civil Pretrial Practice

1. Civil Pretrial Practice Expert Discovery; Introduction to Alternative Dispute Resolution

2. Expert DiscoveryRetained versus Non-Retained Experts • Expert witnesses will generally have specialized knowledge of a scientific or technical field. There are two categories of expert witnesses: • Retained experts are witnesses with expertise, specifically retained by you to express an opinion in anticipation of the litigation or in preparation for trial. • Non-retained experts, are percipient witnesses who can be called upon to give their expert opinions based on their observations, gained not in anticipation of litigation or preparation of trial. • Although a treating physician is a percipient expert, that does not mean that his or her testimony is limited only to personal observations. A treating physician can provide opinion testimony based on the facts independently acquired and informed by the physician’s training, skill, and experience.

3. Expert Discovery - Dates and Deadlines • Experts Must Be Demanded – 70 days before trial (or within 10 days of setting trial date, whichever is closer to trial date)  [CCP 2034.220] • Experts Must Be Disclosed – 50 days before trial (or 20 days after service of demand, whichever is closer to trial date)  [CCP 2034.230] • Supplemental Expert Disclosure – Must be disclosed within 20 days of the Exchange of Expert Witnesses.  May only disclose witness to cover a subject covered by opponent’s witnesses.  [CCP 2034.280] • Expert Discovery Cut Off – 15 days before original trial date.  [CCP 2024.030]. • Last Day for Motions Regarding Experts – 10 days before original trial date.  [CCP 2024.030].

4. Expert DiscoveryDemand for Exchange of Expert Witness Information • The demand for exchange of expert witness information must include (CCP §2034.230): • The name of the party making the demand (i.e., your client) below the title of the case; • A statement that the demand is being made under CCP §§2034.010-2034.730; • The specific date you have calculated for exchange of: • Lists of expert trial witnesses, • Expert witness declarations, and • Any demanded production of writings; and • If you want to see an expert’s reports and writings, a demand for inspection and copying of all discoverable reports and writings made by the expert witness in the course of preparing his or her opinion. CCP §2034.210(c). • If a party has demanded production and exchange of expert witness information, all parties, including the party initiating the demand, must produce and exchange them at the place and on the date specified in the demand.

5. Expert DiscoveryDesignation of Expert Witnesses • This is a formal, written statement, including either: • A statement that you do not intend to offer any expert witness testimony (CCP §2034.260(b)(2)); or • A list of the names and addresses of anyone whose expert opinion you expect to offer in evidence. CCP §§2034.210(a), 2034.260(b)(1). • This can include: a party, an employee of a party, or someone you have hired to express an opinion in anticipation of litigation or in preparation for trial. CCP §2034.210(b). It also includes any percipient witness you expect to ask for his or her expert opinion (e.g., a police officer who investigated a traffic accident or the architect who designed a building that is the subject of the litigation). CCP §2034.430(a)(3). • If you intend to use a treating physician as an expert, include him or her on your list. • See Schreiber v Estate of Kiser (1999) 22 C4th 31, 91 CR2d 293 (expert witness declaration generally not required for treating physician; but if treating physician is formally retained for purpose of offering opinion testimony at trial, party must provide expert designation, with physician’s name and address, although expert declaration not required); Kalaba v Gray (2002) 95 CA4th 1416, 116 CR2d 570 (trial court correctly rejected standard of care testimony from plaintiff’s treating physicians who were not designated as expert witnesses; absence of expert testimony on standard of care resulted in nonsuit for defendant).

6. Expert DiscoveryExpert Witness Declarations • You will need an expert witness declaration if any expert witness on your list is in a category identified in CCP §2034.210(b). • You do not need an expert declaration for an expert witness who is not in one of the categories of CCP §2034.210(b) (i.e. non-retained experts). CCP §2034.260. • This is a statement, signed by you as the party’s attorney, setting out specific information and executed under penalty of perjury, which must contain: • A brief statement of the expert’s qualifications (CCP §2034.260(c)(1)); • A brief statement of the general substance of the testimony that the expert is expected to give at trial (CCP §2034.260(c)(2)); • The trial court can preclude an expert from testifying at trial on a subject if its general substance was not described in the expert witness declaration and the opposing party has had no notice of it. • A representation that the expert has agreed to testify at the trial (CCP §2034.260(c)(3)); • A representation that the expert will be familiar with the case and will give a meaningful oral deposition about his or her testimony, opinions, and their basis (CCP §2034.260(c)(4)); and • A statement of the expert’s hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney (CCP §2034.260(c)(5)).

7. Expert DiscoverySupplemental Designation of Expert Witnesses • You may serve a supplemental designation list within 20 days of the original exchange, providing you meet the following qualifications: • You engaged in the original exchange; and • You did not retain an expert to testify on a subject; i.e., you did not originally intend to cover that subject wit expert testimony; but you want to add an additional expert to testify on that subject because you have learned that opposing counsel is naming an expert witness to cover that subject. • To add an expert to testify on the same subject as experts designated in the original exchange by opposing party, you must provide (CCP §2034.280(a)-(b)): • Supplemental list of names and addresses of expert witnesses you are retaining to testify; • Expert witness declarations; and • Discoverable reports and writings, if any, made by the additional experts.

8. Expert DiscoveryFailure to Designate Expert Witnesses • If a party does not disclose their experts, include an expert declaration when required, produce reports and writings of experts demanded under CCP § 2034.270, or make their expert available for deposition, the court must exclude any evidence from that expert (CCP § 2034.300), except under a few narrow circumstances (CCP § 2034.310). • The court will exclude your expert’s opinion if you unreasonably fail to timely (CCP §2034.300): • List your expert witness, • Submit your expert witness’s declaration, • Produce discoverable reports and writings, if demanded, or • Make your expert witness available for deposition

9. Expert Discovery - Depositions • Timing: Expert Depositions may be set “On receipt of an expert witness list from a party.”  [CCP 2034.410] • Location and Cost : If one side discloses an expert who is "specially retained" or a party or an employee of a party, the designating party must produce that expert for deposition within 75 miles of the courthouse. (Code Civ. Proc. § 2034(i)(1).) The noticing party must pay the expert a reasonable hourly rate for actual deposition time. • Document Request With Deposition Notice: California Code of Civil Procedure § 2034 requires that the parties exchange "all discoverable reports and writings" that are "made in the course of preparing that expert’s opinions" when a party includes that request in the demand for exchange of expert information. (Code Civ. Proc. §§ 2034(a)(2) and (g).) • Experts must provide a copy of the documents that they are producing in response to the deposition notice three business days before their deposition.  [CCP 2034.415]

10. Settlement and Alternative Dispute Resolution (“ADR”) Methods • Alternative Dispute Resolution (ADR) is the general term applied to a wide variety of dispute resolution processes which are alternatives to lawsuits. • Types of ADR processes include: • Arbitration, • Neutral Evaluation, • Settlement Conferences, • Mediation Others: Private Judging, Mini-trials, Negotiation.

11. Settlement and Alternative Dispute Resolution (“ADR”) Methods - Benefits • Save Time: A dispute often can be settled or decided much sooner with ADR; often in a matter of months, even weeks, while bringing a lawsuit to trial can take a year or more. • Save Money: When cases are resolved earlier through ADR, the parties may save some of the money they would have spent on attorney fees, court costs, experts' fees, and other litigation expenses. • Increase Control Over the Process and the Outcome: In ADR, parties typically play a greater role in shaping both the process and its outcome. In most ADR processes, parties have more opportunity to tell their side of the story than they do at trial. Some ADR processes, such as mediation, allow the parties to fashion creative resolutions that are not available in a trial. Other ADR processes, such as arbitration, allow the parties to choose an expert in a particular field to decide the dispute. • Preserve Relationships: ADR can be a less adversarial and hostile way to resolve a dispute. For example, an experienced mediator can help the parties effectively communicate their needs and point of view to the other side. This can be an important advantage where the parties have a relationship to preserve. • Increase Satisfaction: In a trial, there is typically a winner and a loser. The loser is not likely to be happy, and even the winner may not be completely satisfied with the outcome. ADR can help the parties find win-win solutions and achieve their real goals. This, along with all of ADR's other potential advantages, may increase the parties' overall satisfaction with both the dispute resolution process and the outcome. • Improve Attorney-Client Relationships: Attorneys may also benefit from ADR by being seen as problem-solvers rather than combatants. Quick, cost-effective, and satisfying resolutions are likely to produce happier clients and thus generate repeat business from clients and referrals of their friends and associates.

12. Settlement and Alternative Dispute Resolution (“ADR”) Methods - Arbitration Judicial arbitration is a process in which cases are assigned to an attorney or retired judge, sitting as an impartial Arbitrator, to conduct an informal mini-trial. • In arbitration, each side in the dispute presents its case, including evidence, to the arbitrator. The arbitrator issues a decision called an Award of Arbitrator based on the evidence just as a judge would, within a time frame set by the Court. Although evidence is presented, arbitration is a less formal process than litigation. • Arbitration may be binding or non-binding depending on what the parties agree to before beginning the process. Non-binding arbitration means that the participants in the case are not required to accept the arbitrator's award and they may request a trial de novo which returns the case to the Court's calendar as if arbitration had not occurred. https://youtu.be/bWMnWsgQrdQ

13. Settlement and Alternative Dispute Resolution (“ADR”) Methods – Neutral Evaluation In neutral evaluation, each party gets a chance to present the case to a neutral person called an "evaluator." The evaluator then gives an opinion on the strengths and weaknesses of each party's evidence and arguments and about how the dispute could be resolved. The evaluator is often an expert in the subject matter of the dispute. Although the evaluator's opinion is not binding, the parties typically use it as a basis for trying to negotiate a resolution of the dispute. https://youtu.be/KkntJc0womc

14. Settlement and Alternative Dispute Resolution (“ADR”) Methods – Settlement Conferences Settlement conferences may be either mandatory or voluntary. In both types of settlement conferences, the parties and their attorneys meet with a judge or a neutral person called a "settlement officer" to discuss possible settlement of their dispute. The judge or settlement officer does not make a decision in the case but assists the parties in evaluating the strengths and weaknesses of the case and in negotiating a settlement. Settlement conferences are appropriate in any case where settlement is an option. Mandatory settlement conferences are often held close to the date a case is set for trial. https://youtu.be/6wGfAqSUFoY

15. Settlement and Alternative Dispute Resolution (“ADR”) Methods - Mediation Mediation is a voluntary and confidential process in which the Mediator - a neutral third party - facilitates settlement negotiations. The Mediator improves communication between the parties, helps parties clarify facts, identifies potential legal issues, explores options and attempts to arrive at a mutually acceptable resolution of the dispute. Unlike an arbitrator, the mediator makes no decision or findings about the facts of the case and makes no award. The rules of evidence and formal court procedures do not apply to mediation. https://youtu.be/aPetj5bh0Qk