Scheduling and Subpoenas
7.1 The attorney should schedule an expert's testimony in depositions or at trial far enough in advance and in such a manner so as to minimize inconvenience to the expert and disruption of the expert's practice.
Scheduling of an expert's deposition or in-court testimony should be done as far in advance as possible. It is often a good practice to advise all potential witnesses of a trial date at the time the trial is first set. Vacation schedules and other potentially conflicting obligations can then be determined and resolved in advance. Specific arrangements concerning the date, time, and place of trial testimony preferably should be made more than six (6) weeks prior to the scheduled appearance.
Similarly, depositions should be scheduled at a mutually convenient time and place. Attorneys should readily agree to depositions "after hours" at the expert's office if that is the least disruptive to the expert's practice. However, if the expert's office is not large enough to accommodate the attorneys in a multiple-party case, the expert should readily agree to the deposition being held at an attorney's office, hospital, or other convenient location.
To avoid delays and unnecessary waiting at trial, the attorney should try to schedule an expert witness as the first witness in the morning or afternoon sessions. Lay witnesses may also be used as buffers to expert witnesses. It is sometimes possible to call an expert "out of order" to accommodate his or her schedule.
However, being called "out of order" may disrupt a trial, inconvenience other witnesses and interrupt the logical flow of evidence. Therefore, while the expert is entitled to some estimate of the amount of time needed for testimony, he or she should be mindful that the attorney has little control over the court's docket, the needs of other witnesses, or the opposing attorney's conduct or questioning. These may necessarily result in some delay in testimony or other inconvenience to the expert.
7.2 Experts should understand the significance of the subpoena and honor its enforcement. Likewise, an attorney should never abuse the power of the subpoena.
A subpoena is an order of court that may be issued by an attorney, compelling a witness to appear at the time and place stated in the subpoena. A subpoena duces tecum ("subpoena to produce") requires a witness to appear and produce certain things or documents. Subpoenas may be issued for deposition or trial testimony. The failure to comply with a subpoena may constitute contempt of court and subject the noncomplying witness to fine or imprisonment unless there exists "good cause" for the failure to comply such as a true medical emergency. A witness who does not comply with a subpoena takes the risk of later having to convince the court that the emergency was of sufficient gravity to constitute "good cause."
Not only professional courtesy, but the reputation of the expert and the safety of his or her patients or clients, demands that an attorney not abuse the subpoena power. Life or health must not be jeopardized so that an expert can make a timely appearance in court. On the other hand, every reasonable effort should be made by the witness to appear as scheduled, whether or not a subpoena has been issued.
While every reasonable attempt should be made to accommodate the expert, it must be understood by the expert that he or she does not always have the right to choose the time and place to give testimony. Like any other witness, an expert summoned to court by subpoena must appear at the time and place so designated. However, it must constantly be stressed that a lawyer should never abuse the use of a subpoena and should always recognize the potentially disruptive effect it could have on an expert's practice, if reasonable arrangements have not been made in advance to have the witness set aside the time.
If an expert feels that a subpoena has been improperly used, or a subpoena duces tecum's request to produce documents is overly burdensome, oppressive, or invasive of his or her privacy, the expert should contact his or her lawyer to determine what protective measures, if any, might be available.
Even though testimony is scheduled in advance, sound reasons still exist for subpoenaing an expert. The witness should understand that the issuance of a subpoena does not signify a lack of trust in the expert's agreement to appear, nor is it intended as a heavy-handed tactic to compel a recalcitrant or hostile witness. Rather, a subpoena is often necessary to protect the interests of the client seeking the testimony of the expert and to allow the attorneys and the court to better accommodate the expert's scheduling needs. Courts are often reluctant to grant continuances in the event of an emergency, take witnesses out of order, or otherwise accommodate busy experts unless they have been previously subpoenaed.
Frequently, a judge will permit the expert who has been subpoenaed to remain "on call," which means that the expert need not be personally present at all times, so long as he or she can be reached by telephone and respond promptly when needed.
When the testimony of the expert witness has been completed, counsel should immediately move the court to excuse the witness from further appearances under the subpoena.
7.3 The use of a subpoena to compel an expert's presence does not in any way affect the expert's entitlement to an expert witness fee.
If the subject of testimony arises out of an individual's role or status as an expert, he or she is entitled to an expert witness fee. (See § 9.6.) The use of a subpoena to compel a witness's presence at a deposition, hearing, or trial does not in any way affect the expert's entitlement to such an expert witness fee.
Before a subpoena is issued and served on the expert, the better practice is for the attorney to contact the expert and attempt to agree upon a reasonable expert witness fee for complying with the subpoena. At the very least, a short note by the attorney should be served with the subpoena explaining that the check for the statutory mileage and witness fee accompanying the subpoena should not be considered the expert's sole remuneration for appearing under subpoena and a further expert witness fee is justified.
If no prior agreement is reached, the expert may bill the attorney for a reasonable expert witness fee for attending pursuant to the subpoena. (See §9.) If a disagreement arises over the entitlement to such a fee, or the amount requested, that dispute may be submitted to the court or to an interprofessional dispute resolution committee. (See §10.)
7.4 Service of a subpoena should be handled in the least disruptive manner. An expert should never seek to evade service of a subpoena so as to avoid having to give testimony.
At the time the expert's testimony is scheduled, the attorney should discuss with the expert the need for service of a subpoena and the manner in which the subpoena should be served. Personal service can be disruptive to the expert's office and embarrassing to the expert. A private process server should be instructed by the attorney concerning tactful and discrete service of a subpoena.
Many experts prefer that the subpoena be sent through the mail with a "Waiver and Acceptance of Service." This can also save the client service of process costs. If this is not returned a reasonable time before trial, personal service can still be accomplished.
An expert should never seek to evade service of a subpoena so as to avoid having to testify. This is beneath the dignity of the expert, substantially increases litigation costs, obstructs the administration of justice, and can result in eventual embarrassment to the expert when service is finally accomplished.