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Understanding the Litigation Process: Discovery, Summary Judgment, and Expert Testimony

This guide provides an overview of key stages in the litigation process, focusing on discovery, summary judgment, and expert testimony. It discusses the timing of summary judgment motions, the criteria for evaluating genuine issues of material fact, and the role of expert witnesses. Through case studies, it illustrates how different strategies affect outcomes, particularly the tension between open discovery and the adversarial system. The insights offered here are vital for legal professionals navigating complex litigation scenarios and seeking effective resolution strategies.

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Understanding the Litigation Process: Discovery, Summary Judgment, and Expert Testimony

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  1. WHERE WE ARE & WHAT WE’RE DOING • Pleading • Pre-trial • Discovery • Resolution without Trial • Trial & Post-trial • Appeal

  2. COURT OBSERVATIONS • The Summary Judgment Process • Timing: after discovery • Motion-response-reply • “no genuine issue of material fact” • Declarations/depositions • Oral argument • Only if requested

  3. COURT OBSERVATIONS • Quality of Lawyering • Written Materials • Oral Argument

  4. COURT OBSERVATIONS • Strategy • SJ as “discovery” of legal theories • Partial summary judgment

  5. COURT OBSERVATIONS • Strategy – winnowing process • No genuine issue of material fact • 1987 • Legal issue as to standard • Disability evaluation v. treatment • Factual issues • Information Dr’s provided • Are factual issues “material”?

  6. COURT OBSERVATIONS • Strategy – winnowing process • No genuine issue of material fact • 1989 • Visit for treatment • No legal issue as to standard • Factual issues • Who did the exam? • Causation? • Are factual issues material? • Negligence established anyway? • Failure to request chart?

  7. DISCOVERYScope & Limits • 26(b)(1) General • Not privileged • Relevant to • Claim/defense • Subject matter • 26(b)(2) Court discretion to limit • Individual case • Local rule - #requests to admit • 26(b)(3) & (4) Exceptions • Trial Preparation Materials • Experts

  8. DISCOVERYFR 26(b)(4) Trial Prep Experts • Experts • Fact W’s v. opinion W’s • Fact - FR 26(a)(1)(A)

  9. DISCOVERYFR 26(b)(4) Trial Prep Experts • Experts • Testifying experts • “opinions may be presented at trial” • FR 26(a)(2) – disclose w/ report • FR 26(b)(3) – depose after report provided • Non-testifying experts • “retained or specially employed” • FR 26(b)(4)(B) • discovery only if exceptional circumstances • Impracticable to obtain info by other means

  10. DISCOVERYThompson, p. 539 • Method • Information sought • Pl’s procedural response • Category of expert • Discovery allowed?

  11. DISCOVERYChiquita, p. 541 • Method • Information sought • Def’s procedural response • Category of expert • Discovery allowed?

  12. SKILLSDistinguishing Cases • Why different results? • Distinguish cases on their facts • Thompson • Chiquita

  13. TAKEAWAYS • Black Letter Law • FR 26(b) (4) • Exception to broad scope of discovery • Applies work-product concept to experts • Protects • Non-testifying experts • Not facts • Allows discovery if • exceptional circumstances • Impractical to obtain facts/opinions by other means

  14. TAKEAWAYS • Big theme • Tension between • Open discovery v. • Adversary system • Each party prepare own case • Discourage expert evaluations • “Undue prejudice”

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