2005 Rules Need More Salt
The new rules of civil procedure (2005) should accomplish two things: reduce abuse and promote efficiency.
This will likely stop practitioners who manipulate the rules to the unfair disadvantage of their adversaries, and rid the practice of practitioners who fail to adhere to the rules of fair play.
What we should like to see remain are plaintiff's lawyers who are, truly, concerned about helping clients, and defense lawyers who are likewise, truly, concerned about properly spreading insurance resources.
The way it was As my friend, colleague and our president elect and deserving Trial Lawyer of the Year, Robert Eglet, referred me to the "real world" over coffee recently, I am finding the rules being used in obscure "real world" ways that are not promoting justice or the objectives mentioned above.
I think the rules should assist lawyers who seek preparedness for trial or other dispute resolution.
When a new case is considered, investigate it, make inquiry into its meritorious character, and work with experts to formulate strategy.
Do not wait 2 years to file a complaint, or until deadline expiration to consult, retain, or produce experts and reports.
Move the case forward.
Prior to 2005, it was typical to become inundated with 5 or more adverse experts on the last day for expert designation and not receive expert reports before discovery cutoff.
Not taking the deposition of an expert, who did not produce a report, to find out their opinion, was done at the party's peril.
Of course deciding when an expert's opinion was "ready" for discovery, with no report, created the need to wait until discovery cutoff to take depositions.
This necessarily created discovery congestion and trial continuances.
Other times, getting an expert report immediately prior to discovery cutoff resulted in taking the expert's deposition only a day or so after receiving the report.
This was burdensome and calculating.
Most times there was unavoidable competition with adverse counsel for deposition dates.
Even when the majority of a party's witnesses and experts were disclosed for over a year, the mad rush to depose witnesses and experts came weeks before discovery cutoff.
Predictably, discovery extension requests, typically by defendants, were routinely granted by courts.
A party's inability to meet an onslaught of depositions of its experts, while effectively planning and taking the adverse party's expert depositions, was the basis for the discovery extension.
A sole practitioner was advised to hire more lawyers, while various defense firms, full of able "warm bodies," are permitted to set two and three depositions in different states on the same day.
It is certainly not possible to be in three states or on the phone with three deponents at the same time.
The situation discouraged a lawyer's choice of representing fewer clients and encouraged the high overhead, multi lawyer, quantity-client, law firms.
There is nothing wrong with either practice choice so long as high quality of client interest is maintained.
Nonetheless Plaintiffs have historically been sucked into the defense vacuum of last minute preparation.
Enter the new rulesIn 2005 the premise is that the new rules will stop last minute preparation, trial continuances, discovery continuances and the like.
It sounds good for plaintiff's who prosecute their cases.
Not to mention good for their clients.
No longer are parties allowed to designate experts (sometimes without the expert even knowing they are designated in the lawsuit!) without submitting a report designating their opinions.
Now, a deposition takes place with greater effect.
With well thought out and noted exceptions, Nevada Rules of Civil Procedure look more like the Federal Rules of Civil Procedure.
Meanwhile, in the "real world," some lawyers are perverting the intent of the rules.
I now see lawyers trying to limit the testimony of an expert to the opinion given in the report.
This is wrong.
Surely an extensive divergence of opinion will be disallowed in most cases; but to not allow an expert to review additional information and form opinions, not specifically contained in a report, is disingenuous.
Certainly context is applicable:it is inappropriate, for instance, for a radiologist to give an opinion on something outside his specialty and not provided in a report.
But universal preclusion of opinions based on reports goes beyond such context.
How can a plaintiff expert include a rebuttal opinion, of a defense expert's opinion, in a report that is written before the defense expert's examination?How can a treating physician, who has not seen expert reports, from pertinent forensic experts, be precluded from testifying at trial about those expert's reports; in such cases the provider authors no "report" in the forensic sense, since medical records are not typically kept in forensic reporting format?Yet lawyers will argue that the provider's medical records must be the exclusive basis from which the provider testifies.
Essentially, an emergency room physician, arguably, is precluded from testifying whether diagnosis and prognosis from experts years after the injury are consistent with the emergent care they rendered years earlier.
And what about a case where the injury, treatment, care and information is ongoing after the expert opinion?Limiting experts and treating physicians to their records and reports is not a legitimate use of the 2005 Rules of Civil Procedure.
In defense of a (legitimate) defense, defendants should not be subject to surprises of some plaintiff practitioner's efforts to ambush a case with opinions not revealed during depositions and not anticipated to be made in the case.
And it is the responsibility of plaintiff's counsel to provide experts with pertinent information from which to form opinions.
But to limit testimony, across the board, to a report made at a point in time is wrong.
For instance, consider a case where an 88 year old man breaks his hip when his neighbor's dog jumps up and knocks him over; all depositions are finished by discovery cutoff.
The opinion of a surgeon, that a subsequent fall down a flight of stairs, subsequent to the reports and depositions in the case, resulting in asecond injury of neck fracture, being related to the weak hip and hip replacement, should not be precluded.
A person may begin to bleed at the time of injury, continue bleeding through treatment, through discovery and even at trial; but evidence of bleeding should not stop at the point of discovery cutoff.
The bloody medical records should be considered, spoken about and given to a jury, even if they continue to the day of trial.
A party should be allowed to limit the quantity of blood she, arguably, caused based on a rule that is taken out of context.
In another case, discovery cutoff is expired, plaintiff is severely brain damaged is undergoing significant orthopedic reparations to restore function to a once severed arm.
The surgeries continue.
Should physicians, whose opinions have been revealed in medical and expert reports, be limited to testifying, and specifically precluded from medical information obtained after their report or deposition, and only because it was due to surgery occurring after those events.
Heavens no! Plaintiff's CaseAbuse and misuse is not the intent of the New Rules.
As plaintiff's counsel, I suggest inserting terms in the early case conference report.
State that expert reports will be applicable as of the date of their authorship and depositions will be applicable as of their date.
Be sure to provide your expert with all information in the case - good bad and ugly:Your experts, defense experts, medical records, employment information, and financial information - everything.
When defense waits until the last minute to depose plaintiff's experts (like that will ever change) allow them to retake it only if there is new information anticipated (as in a plaintiff under continuing care) and limited to the new information.
ConclusionLet's start an open dialogue on this issue.
How are the 2005 Rules of Civil Procedure affecting discovery and trial practice?Most Nevada lawyers saw the Northern or Southern versions of The New 2005 Rules of Civil Procedure, moderated by Dan Polsenberg.
Even after he said, "the new rules apply to ALL cases," we found they did not.
Let's make the system predictable and better; for our clients and us.
Timothy Titolo is a personal injury trial attorney representing clients with brain and spine injury.
He is a frequently invited speaker at various brain injury associations around the country.
He is the recipient of the 2002 Aurora Award, 2003 Award of Excellence, 2004 Jade Award, and 2005 Aurora Award for brain injury cases he has been involved in.
He is a member of the Million Dollar Advocates and has obtained the largest verdicts and settlements in Nevada for persons with mild to moderate brain injury.
This will likely stop practitioners who manipulate the rules to the unfair disadvantage of their adversaries, and rid the practice of practitioners who fail to adhere to the rules of fair play.
What we should like to see remain are plaintiff's lawyers who are, truly, concerned about helping clients, and defense lawyers who are likewise, truly, concerned about properly spreading insurance resources.
The way it was As my friend, colleague and our president elect and deserving Trial Lawyer of the Year, Robert Eglet, referred me to the "real world" over coffee recently, I am finding the rules being used in obscure "real world" ways that are not promoting justice or the objectives mentioned above.
I think the rules should assist lawyers who seek preparedness for trial or other dispute resolution.
When a new case is considered, investigate it, make inquiry into its meritorious character, and work with experts to formulate strategy.
Do not wait 2 years to file a complaint, or until deadline expiration to consult, retain, or produce experts and reports.
Move the case forward.
Prior to 2005, it was typical to become inundated with 5 or more adverse experts on the last day for expert designation and not receive expert reports before discovery cutoff.
Not taking the deposition of an expert, who did not produce a report, to find out their opinion, was done at the party's peril.
Of course deciding when an expert's opinion was "ready" for discovery, with no report, created the need to wait until discovery cutoff to take depositions.
This necessarily created discovery congestion and trial continuances.
Other times, getting an expert report immediately prior to discovery cutoff resulted in taking the expert's deposition only a day or so after receiving the report.
This was burdensome and calculating.
Most times there was unavoidable competition with adverse counsel for deposition dates.
Even when the majority of a party's witnesses and experts were disclosed for over a year, the mad rush to depose witnesses and experts came weeks before discovery cutoff.
Predictably, discovery extension requests, typically by defendants, were routinely granted by courts.
A party's inability to meet an onslaught of depositions of its experts, while effectively planning and taking the adverse party's expert depositions, was the basis for the discovery extension.
A sole practitioner was advised to hire more lawyers, while various defense firms, full of able "warm bodies," are permitted to set two and three depositions in different states on the same day.
It is certainly not possible to be in three states or on the phone with three deponents at the same time.
The situation discouraged a lawyer's choice of representing fewer clients and encouraged the high overhead, multi lawyer, quantity-client, law firms.
There is nothing wrong with either practice choice so long as high quality of client interest is maintained.
Nonetheless Plaintiffs have historically been sucked into the defense vacuum of last minute preparation.
Enter the new rulesIn 2005 the premise is that the new rules will stop last minute preparation, trial continuances, discovery continuances and the like.
It sounds good for plaintiff's who prosecute their cases.
Not to mention good for their clients.
No longer are parties allowed to designate experts (sometimes without the expert even knowing they are designated in the lawsuit!) without submitting a report designating their opinions.
Now, a deposition takes place with greater effect.
With well thought out and noted exceptions, Nevada Rules of Civil Procedure look more like the Federal Rules of Civil Procedure.
Meanwhile, in the "real world," some lawyers are perverting the intent of the rules.
I now see lawyers trying to limit the testimony of an expert to the opinion given in the report.
This is wrong.
Surely an extensive divergence of opinion will be disallowed in most cases; but to not allow an expert to review additional information and form opinions, not specifically contained in a report, is disingenuous.
Certainly context is applicable:it is inappropriate, for instance, for a radiologist to give an opinion on something outside his specialty and not provided in a report.
But universal preclusion of opinions based on reports goes beyond such context.
How can a plaintiff expert include a rebuttal opinion, of a defense expert's opinion, in a report that is written before the defense expert's examination?How can a treating physician, who has not seen expert reports, from pertinent forensic experts, be precluded from testifying at trial about those expert's reports; in such cases the provider authors no "report" in the forensic sense, since medical records are not typically kept in forensic reporting format?Yet lawyers will argue that the provider's medical records must be the exclusive basis from which the provider testifies.
Essentially, an emergency room physician, arguably, is precluded from testifying whether diagnosis and prognosis from experts years after the injury are consistent with the emergent care they rendered years earlier.
And what about a case where the injury, treatment, care and information is ongoing after the expert opinion?Limiting experts and treating physicians to their records and reports is not a legitimate use of the 2005 Rules of Civil Procedure.
In defense of a (legitimate) defense, defendants should not be subject to surprises of some plaintiff practitioner's efforts to ambush a case with opinions not revealed during depositions and not anticipated to be made in the case.
And it is the responsibility of plaintiff's counsel to provide experts with pertinent information from which to form opinions.
But to limit testimony, across the board, to a report made at a point in time is wrong.
For instance, consider a case where an 88 year old man breaks his hip when his neighbor's dog jumps up and knocks him over; all depositions are finished by discovery cutoff.
The opinion of a surgeon, that a subsequent fall down a flight of stairs, subsequent to the reports and depositions in the case, resulting in asecond injury of neck fracture, being related to the weak hip and hip replacement, should not be precluded.
A person may begin to bleed at the time of injury, continue bleeding through treatment, through discovery and even at trial; but evidence of bleeding should not stop at the point of discovery cutoff.
The bloody medical records should be considered, spoken about and given to a jury, even if they continue to the day of trial.
A party should be allowed to limit the quantity of blood she, arguably, caused based on a rule that is taken out of context.
In another case, discovery cutoff is expired, plaintiff is severely brain damaged is undergoing significant orthopedic reparations to restore function to a once severed arm.
The surgeries continue.
Should physicians, whose opinions have been revealed in medical and expert reports, be limited to testifying, and specifically precluded from medical information obtained after their report or deposition, and only because it was due to surgery occurring after those events.
Heavens no! Plaintiff's CaseAbuse and misuse is not the intent of the New Rules.
As plaintiff's counsel, I suggest inserting terms in the early case conference report.
State that expert reports will be applicable as of the date of their authorship and depositions will be applicable as of their date.
Be sure to provide your expert with all information in the case - good bad and ugly:Your experts, defense experts, medical records, employment information, and financial information - everything.
When defense waits until the last minute to depose plaintiff's experts (like that will ever change) allow them to retake it only if there is new information anticipated (as in a plaintiff under continuing care) and limited to the new information.
ConclusionLet's start an open dialogue on this issue.
How are the 2005 Rules of Civil Procedure affecting discovery and trial practice?Most Nevada lawyers saw the Northern or Southern versions of The New 2005 Rules of Civil Procedure, moderated by Dan Polsenberg.
Even after he said, "the new rules apply to ALL cases," we found they did not.
Let's make the system predictable and better; for our clients and us.
Timothy Titolo is a personal injury trial attorney representing clients with brain and spine injury.
He is a frequently invited speaker at various brain injury associations around the country.
He is the recipient of the 2002 Aurora Award, 2003 Award of Excellence, 2004 Jade Award, and 2005 Aurora Award for brain injury cases he has been involved in.
He is a member of the Million Dollar Advocates and has obtained the largest verdicts and settlements in Nevada for persons with mild to moderate brain injury.
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