New York's Expert Discovery Rules Are Archaic

By Mark Shifton and Milena Shtelmakher (July 20, 2017, 12:55 PM EDT) -- As every civil litigator knows, expert discovery — especially in complex actions involving claims of product defect, construction or professional liability — is a significant part of developing a workable theory of the case, assessing the relative strengths and weaknesses of a client's position, and preparing for trial. Entire volumes have been written on working with experts to craft effective expert reports, cross-examining an adversary's expert and seeking to limit or preclude an adversary's expert's opinions at trial through motion practice. Expert discovery is such an important facet of complex civil litigation that a solid expert report (followed by a capable performance of an expert at a deposition) can have a dramatic impact, transforming a moderately defensible case into one that should be tried. While none of these concepts are new to civil litigators in nearly every state (as well as those who practice in the federal courts), they are nearly a foreign language for attorneys in New York state courts, as New York places significant limitations on the scope of expert discovery....

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