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Depositions

8.1­ Depositions are an inherent part of the pre-trial discovery process. Usually, the taking of a deposition is not in lieu of court appearance and testimony.

Depositions of witnesses, including expert witnesses, are sometimes taken for "discovery" purposes. In other words, they are taken by the attorney opposing the party retaining or endorsing the expert in order to discover the expert's opinions. As such, different rules of examination, foundation, and qualifications apply to discovery depositions than to trial testimony. Therefore, a pre-trial deposition is often not admissible at trial. This is especially so if the expert is otherwise available in the jurisdiction and amenable to compulsory attendance by the service of a subpoena.

The attorney retaining or endorsing the expert naturally does not want to rely upon his opponent's questioning to present his or her evidence. The lawyer also wants to assure an orderly presentation of evidence in compliance with all rules of evidence to assure admissibility of the testimony. Further, the attorney must be allowed the flexibility of addressing new issues that first arise during trial and could not have been reasonably foreseen prior to trial. Finally, for the trier of fact to understand and evaluate expert testimony, especially complex or conflicting testimony, it is essential that they see that testimony live and that the expert appear in court.

Under new, limited discovery rules, and new rules mandating certain advance reports and disclosures, the prior practice of routinely deposing experts may be curtailed.

8.2 ­The party taking the deposition is responsible for timely payment of all reasonable charges for time spent by the expert traveling to and from the deposition and for participating in the deposition, unless there is an agreement or order to the contrary. The party retaining or endorsing the expert is responsible for the cost of the expert's time in preparing for the deposition. In the event a request for review of the deposition has been made, if the witness is a treating physician, the party noticing the deposition is responsible for any reasonable cost associated with the review and signature. If the witness is a retained expert, the party retaining the expert is responsible for any reasonable cost associated with the review and signature.

The party taking the deposition must pay reasonable compensation for the deposition he or she has requested. This includes reasonable costs and fees associated with any travel to or from the deposition as well as an expert witness fee for participating in the deposition. Preparation for the deposition, on the other hand, inures primarily to the benefit of the party retaining or endorsing the expert, and that party should be responsible for that preparation time. Presumably, such preparation furthers the cause of the endorsing party. Also, it would be unworkable and inappropriate for the opposing party to exercise control over the amount of time the other party's expert is to spend in preparation for a deposition. Rather, the party retaining or endorsing the medical expert can and should discuss and agree with the expert concerning the amount of time to be spent in preparation for a deposition and the charges to be incurred.

However, special requests made by opposing counsel for research or compiling of information may fall outside of "preparation for deposition." Who is responsible for payment of the fees for fulfilling these requests should be determined between the parties before the task is performed by the expert.

Under new rules, effective in 1995, review and signature of a deposition transcript are waived, unless the deponent or a party requests review and signature before completion of the deposition.

In the event a request for review of the deposition has been made, if the witness is a treating physician, the party noticing the deposition is responsible for any reasonable cost associated with the review and signature. If the witness is a retained expert, the party retaining the expert is responsible for any reasonable cost associated with the review and signature.

8.3 ­Depositions costs and fees should be reasonable and should be agreed upon in advance of the deposition. Disputes should be noted at the outset, and attempts should be made to amicably resolve such disputes or timely submit them to the court for resolution.

Deposition costs and expert witness fees should be reasonably based on the factors set forth in Section 9.2 of this code. Every effort should be made by the expert and retaining and deposing counsel prior to the deposition to agree on the manner, timing, and amount of compensation. In the alternative, the party endorsing the expert may legitimately condition the deposition upon prior financial arrangements being agreed to or determined by the court as set forth in Rule 26(b)(4) of the Colorado or Federal Rules of Civil Procedure.

An attorney taking the deposition of an opponent's expert witness should not withhold or delay payment of that expert's fees or engage in unnecessary conflict so as to discourage that expert witness from further involvement in the case, or as a means of "punishing" that expert for his or her testimony. When an agreement has not been reached and a dispute does arise, it should be promptly submitted to a judge or interprofessional committee for resolution. Any undisputed amounts should be remitted without delay.