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advocacy community education
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them; d) your qualifications, including a
list of all publications you authored in
the previous 10 years; e) a list of all
other cases in which, during the past
four years, you testified as an expert at
trial or by deposition; and f) a state-
ment of your compensation for your
study and testimony in the case. If your
report does not include everything that
is required, or is not disclosed to
opposing counsel within the time
ordered by the court, your testimony
may not be allowed.
The only change from the old rules in
what must be in your report is from "data
or other information" to "the facts and
data" you considered. Thus, you need
disclose only information of a factual
nature, excluding theories and mental
impressions of retaining counsel.
Certain communications, however, are
not protected even under the new
rules. Three subjects are still subject to
disclosure: a) communications related
to your compensation for study and
testimony in the case; b) the identity of
facts or data retaining counsel provid-
ed to you and you considered (even if
you did not rely on them) in forming the
opinions you intend to testify about;
and c) the assumptions retaining coun-
sel provided to you and you relied on in
forming those opinions.
If you were retained before December
1, 2010, and have not yet been
deposed or have not yet testified in
court, the law is unclear about how the
recent amendments to the federal
rules apply to you. The rules are silent
about this.
The Order of United States Supreme
Court Justice Roberts, which imple-
mented these new rules, provides that
the changes apply, "insofar as just
and practicable," to all proceedings
pending as of December 1, 2010. You
should discuss the applicability of
these rule changes with retaining
counsel before you are deposed or
testify in court.
If you are deposed, the lawyer depos-
ing you must pay you for the reason-
able time you spend preparing for
your deposition and for the time you
are actually deposed. The hourly rate
you can charge depends on a number
of factors, all pertaining to the reason-
ableness of that rate. Keep track of
the number of hours it takes to pre-
pare for your deposition and inform
retaining counsel.
State Court Rules
Governing Testifying Experts
In Connecticut state court, none of
these changes have been made.
Accordingly, you must assume that
every communication you have with
retaining counsel, no matter in what
form, will be the subject of questions at
deposition and at trial. You must be as
wary as before in talking to retaining
counsel and sending emails, faxes,
and letters to retaining counsel.
No formal report is required in
Connecticut state court, but a formal
disclosure of all expert witnesses is
required. That disclosure must include
your name, address, employer, field of
expertise, subject matter about which
you expect to testify, the expert opin-
ions to which you expect to testify, and
the substance of the grounds for each
such opinion. If you do not comply with
all requirements for your disclosure, or
do not disclose it within the time the
judge orders, your testimony may not
be allowed.
Unless the judge orders or the parties
agree otherwise, the lawyer hiring you
as a testifying expert witness must,
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