Should expert depositions be on an endangered list?

By far the most controversial aspect of the Colorado Civil Access Pilot Project (or CAPP), which began the first of this year, has been the rule limiting “all aspects of the expert’s testimony” to the disclosed report and work files. In other words: no depositions.

“The perception was that a fair amount of cost was going into expert depositions,” explained the Hon. Rebecca Kourlis, formerly a justice on the Colorado Supreme Court and now the executive director at the Institute for the Advancement of the American Legal System (IAALS), which spearheaded the project. “Depositions in general can be abused,” she said, in a special session on national civil litigation reform at the recent AICPA FVS Conference in Orlando, Fla. “They cost too much money and are too long, and can be used for ‘gamesmanship’ rather than investigating the issues in dispute.”

For those who maintain that due process entitles or even requires parties to depose opposing experts, remember: “We try death penalty cases without expert depositions,” Kourlis said. Criminal rules of procedure don’t permit them (and neither, by the way, do Tax Court procedures). Notably, during the early stages of CAPP, only the medical malpractice bar successfully lobbied to retain litigants’ rights to take expert deposition testimony, but the Colorado Supreme Court, which had to approve the final project, “did not buy the argument that depositions are critical to business cases.”

After one more year observing the project in operation, IAALS will collect and analyze data to determine whether the project’s provisions achieved their efficiency and access goals enough to merit recommendation as permanent amendments to the state rules. “Things they are a changing,” Kourlis told the AICPA audience. “Be aware that this is happening across the nation.”