THEIR VIEW: Expert witness discovery should be abolished

BY MENIS KETCHUM

CHARLESTON -- Jury trials in civil cases are becoming remnants of the past.

For instance, only 1.8 percent of the civil cases filed in federal court result in a jury trial. I don't have any statistics, but I would wager that fewer than 1 percent of the civil cases filed in West Virginia are tried before a jury.

As a result, most lawyers who classify themselves as "trial lawyers" or "litigators" have no trial experience. Their experience lies in writing motions and interrogatories, taking depositions, and attending mediations. In reality, they have become discovery or mediation lawyers.

A main cause for the lack of jury trials is burdensome and expensive civil discovery. This results in a mountain of paper queries and transcripts. The cost it imposes on litigants cannot be justified.

The biggest waste of time and money under our discovery rules concerns expert witness discovery.

In 41 years of trial practice, I cannot remember a single expert witness discovery deposition that provided anything of evidentiary value, if I already had the expert's detailed report, the supporting data, and the expert's qualifications. Whenever I had this information about my adversary's expert, it ended up being a waste of my time to fly to some faraway destination for a deposition to be prepared to cross examine the expert at trial. Moreover, it was a waste of my client's money.

When a criminal defendant goes to trial in West Virginia for first-degree murder, our rules do not provide for liberal discovery and depositions. Prosecutors and criminal defense lawyers cannot delay trial for years by filing discovery requests. They cannot bankrupt their opponent by deposing every witness, and every expert, for days on end.

Yet, even without pretrial discovery, prosecutors and criminal defense lawyers do very well in their cross-examination of lay and expert witnesses. I see this routinely in criminal appeals. But it is hard to judge the ability of so-called trial lawyers in civil cases because they do not present cases to juries. As a consequence, civil cases usually reach our Court on pre-trial discovery issues and rulings made by circuit judges on motions.

In order to cut down on the burden and expense of discovery, I propose that we amend the West Virginia Rules of Civil Procedure to eliminate discovery of experts who have been retained to give opinion testimony.

To be clear, this is a personal proposal. The other members of the Court have not signed on, and I offer it to encourage discussion among members of the Bar. The proposed rule B Rule 26(b)(4) B requires a retained expert to produce everything that a trial lawyer will need to adequately cross examine the expert at trial, and to prepare his opposition to this expert's testimony. In addition, the expert will be limited to testifying only about the opinions and information set forth in the expert's report.

Courts are made for litigants. Litigants suffer when the cost of discovery becomes unreasonably expensive. Reducing the cost of expert discovery is a modest first step toward preserving the rights of all West Virginians to their day in court.

In addition, lawyers will learn the art of cross-examining experts and witnesses before a jury rather than in a deposition room. Only then will the questioning of experts stop as to their social security number, the number of children they have, and other irrelevant topics.

I guess I pine for the days when lawyers actually tried civil lawsuits, and didn't have a file three feet thick full of interrogatories, motions and depositions in a rear-end whiplash case.

Ketchum is Chief Justice of the West Virginia Supreme Court of Appeals.

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