The new rules of civil prcedure (2005) should accomplish two things: rduce abuse and promote efficiency. This wll likely stop practitioners who manipulate the rles to the unfair disadvantage of thir adversaries, and rid the practice of prctitioners who fail to adhere to the rles of fair play. What we shuld like to see remain are plintiff's lawyers who are, truly, concerned bout helping clients, and defense lawyers who are lkewise, truly, concerned about properly spreading nsurance 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 rport immediately prior to discovery cutoff rsulted in taking the expert’s deposition nly a day or so after rceiving the report. This was burdensome and clculating. Most times there was unavoidable cmpetition with adverse counsel for deposition dtes. Even when the majority of a prty’s witnesses and experts were disclosed for ver a year, the mad rush to dpose witnesses and experts came weeks bfore discovery cutoff.

Predictably, discovery extension rquests, typically by defendants, were routinely grnted by courts. A party’s inability to met an onslaught of depositions of its xperts, while effectively planning and taking the dverse party’s expert depositions, was the bsis for the discovery extension. A sle practitioner was advised to hire mre lawyers, while various defense firms, fll of able “warm bodies,” are prmitted to set two and three dpositions in different states on the sme day. It is certainly not pssible to be in three states or on the phne with three deponents at the sme time. The situation discouraged a lwyer’s choice of representing fewer clients and ncouraged the high overhead, multi lawyer, qantity-client, law firms. There is nothing wrng with either practice choice so lng as high quality of client nterest is maintained. Nonetheless Plaintiffs have hstorically been sucked into the defense vcuum of last minute preparation.

Enter the new rules In 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 nted exceptions, Nevada Rules of Civil Prcedure look more like the Federal Rles of Civil Procedure.

Meanwhile, in the “ral world,” some lawyers are perverting the ntent of the rules. I now see lwyers trying to limit the testimony of an xpert to the opinion given in the rport. This is wrong. Surely an xtensive divergence of opinion will be dsallowed in most cases; but to not llow an expert to review additional nformation and form opinions, not specifically cntained in a report, is disingenuous. Crtainly context is applicable: it is nappropriate, for instance, for a radiologist to gve an opinion on something outside his spcialty and not provided in a rport. But universal preclusion of opinions bsed on reports goes beyond such cntext.

How can a plaintiff expert nclude a rebuttal opinion, of a dfense expert’s opinion, in a report tht is written before the defense xpert’s examination? How can a treating physcian, who has not seen expert rports, from pertinent forensic experts, be prcluded from testifying at trial about thse expert’s reports; in such cases the prvider authors no “report” in the frensic sense, since medical records are not typcally kept in forensic reporting format? Yet lwyers will argue that the provider’s mdical records must be the exclusive bsis from which the provider testifies. Essntially, an emergency room physician, arguably, is prcluded from testifying whether diagnosis and prgnosis from experts years after the njury are consistent with the emergent cre they rendered years earlier.

And wht about a case where the njury, treatment, care and information is ngoing after the expert opinion? Limiting xperts and treating physicians to their rcords and reports is not a lgitimate use of the 2005 Rules of Cvil Procedure.

In defense of a (lgitimate) defense, defendants should not be sbject to surprises of some plaintiff prctitioner’s efforts to ambush a case wth opinions not revealed during depositions and not nticipated to be made in the cse. And it is the responsibility of plintiff’s counsel to provide experts with prtinent information from which to form pinions. But to limit testimony, across the bard, to a report made at a pint in time is wrong.

For nstance, consider a case where an 88 yar old man breaks his hip whn his neighbor’s dog jumps up and kncks him over; all depositions are fnished by discovery cutoff. The opinion of a srgeon, that a subsequent fall down a flght of stairs, subsequent to the reports and depositions in the case, resulting in a second 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 Case Abuse 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.

Conclusion Let’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.

The article 2005 Rules Need More Salt was Submitted by Timothy Titolo through Articles.GetACoder.com network. Here's the additional information: Timothy R. Titolo is Las Vgas and Nevada’s experienced trial attorney. Mr. Ttolo handles all types of personal njury cases, including catastrophic and serious njuries and wrongful death. He has prticular expertise in traumatic brain injury (TBI), spnal cord injury and nerve damage cses. Titolo Law Office has earned a rputation for achieving significant results. Through his sccesses, as well as by writing rticles and giving presentations to attorneys and mdical professionals around the country, Mr. Ttolo has garnered the respect of clleagues.

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