January 2016 Bar Bulletin
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January 2016 Bar Bulletin

Who Is Your Expert?

Conflict in the Trio of Sources for Civil Procedure

By Bryan Doran


Civil procedure derives from three sources of authority, a triumvirate including the local rules, the Rules of Civil Procedure and the appellate courts. As Octavian (Caesar Augustus) taught Lepidus and Antony, a triumvirate is not always egalitarian, and so the lesson holds in civil procedure.

The appellate courts are Caesar, the ultimate authority. They interpret the rules and can invalidate rules that exceed the court’s rulemaking authority. But the analogy only goes so far. Unlike Lepidus and Antony, who lost all, the civil rules and local rules are potent and civil procedure is a synergy.

Still, hierarchy remains: the local rules must defer to the civil rules and all defer to the higher courts. Local rules should supplement the civil rules and provide procedures specific to a local court that are not in conflict with the civil rules. But they should not, indeed they cannot, provide civil procedure inconsistent with that prescribed by the state. Further, the local courts should be informed by appellate analysis of the civil rules when implementing their local rules.

This is hardly controversial — or at least it should not be. Yet, in King County, the local rules have been applied contrary to the civil rules and appellate courts interpreting them. Trial courts have required parties to answer discovery identifying whom they will call as expert witnesses, what opinions those experts will testify to, and the basis for those opinions — months before the witness disclosure deadline.

This is an end-run around the protection from discovery afforded consulting witnesses by the civil rules and appellate courts. Rather than compelling disclosure of evidence, it forces a party to choose which consulting experts will become testifying experts long before a party must make that choice under the case scheduling order. The consequence of designating a consulting expert as a testifying expert witness is the loss of that witness’s privileged status, subjecting that witness to discovery and “locking in” an opinion before fact discovery on the case has even begun.

The alleged justification for requiring a party to designate and disclose testifying expert witnesses, irrespective of the witness disclosure deadline, includes King County Local Rule 4. This rule sets forth the case scheduling order, but the comments include the following: “The deadlines in the Case Schedule do not supplant the duty of parties to timely answer interrogatories requesting the names of individuals with knowledge of the facts or with expert opinion.1

Additional support for orders compelling designation of experts as testifying witnesses, it has been argued, is Local Rule 26 — or at least the comments to it which state:

This rule sets a minimum level of disclosure that will be required in all cases, even if one or more parties have not formally requested such disclosure in written discovery. This rule is not intended to serve as a substitute for the discovery procedures that are available under the civil rules or preclude or inhibit the use of those procedures. Indeed, in section (e) the rule specifically provides to the contrary.

Section (e), titled “Discovery Not Limited,” states: “This rule does not modify a party’s responsibility to seasonably supplement responses to discovery requests or otherwise comply with discovery before the deadlines set by this rule.”

At first blush, it is not apparent that any conflict exists. Local Rule 26 does not modify the dichotomy between consulting and testifying experts found in CR 26(b)(5). If it did, it would be inconsistent with the Washington Civil Rules and therefore void.2

Nor do the comments to LCR 26 necessarily support disclosure of consulting experts. The comments state that the King County Local Civil Rules do not “serve as a substitute” for the Washington Civil Rules. This comment simply affirms CR 83(a). Designation of testifying expert witnesses is not compelled by the rules. Instead, that is compelled by the case scheduling order.

Similarly, LCR 4 and its comments do not support a defendant’s demand for disclosure of consulting experts. This local rule states that discovery obligations are not waived by the King County Local Rules. The predicate question is whether designating consulting experts as testifying experts, and exposing them to discovery is required by the Washington Civil Rules. The answer is plainly no, and thus there is no discovery obligation that could be waived by the local rules in the first place. The rule does not contemplate designation of testifying experts before the case scheduling order requires it.

Nevertheless, some trial courts have ruled that the local rules require a party to answer discovery and identify the name and opinions of expert witnesses a party intends to call at trial months before the witness disclosure deadline. In support of this interpretation, it has also been argued that CR 11 requires expert opinion supporting liability before filing and thus a plaintiff must have an expert with a supporting opinion.

It is unclear why this means plaintiffs must designate the expert they consulted with, but it has been argued that they do. The effect is staggered witness disclosure, which is plainly inconsistent with both the civil and local rules.

This interpretation of the local rule conflicts with both the civil rules and appellate authority. Requiring parties to select testifying experts as early as 40 days into litigation may be inviting, and may even be a better way to conduct litigation. But it is not the law and the King County courts have no authority to change it through local rules. The law allows parties to select consulting witnesses without having to disclose their opinions.

The appellate courts are unambiguous that consulting expert witnesses are not “discoverable” except under rare and exceptional circumstances. The Court of Appeals explained in Mothershead v. Adams3 that protecting consultants from discovery “permits both plaintiff’s and defendant’s lawyers to seek out various experts to determine facts without the chilling effect of having some expert with whom they consulted and with whom they disagreed being called as a witness against them.”

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