Changing the Rules for Testifying Experts

Does a grievance justify commencement of litigation? How vigorously should a company defend against a claim? When does it make economic sense to simply settle a case? These are questions corporate counsel wrestle with at nearly every fork along the litigation decision road. As with any complex business decision, determining which path to pursue is rarely straightforward and there are many factors to be considered before taking the next step. Under most circumstances, a primary consideration is the costs of litigation. If the Judicial Conference of the United States Committee on Rules of Practice and Procedure (the Committee) recommended changes to the Federal Rules of Civil Procedure (FRCP) are adopted, one element of the litigation calculus ' the costs of expert testimony ' may lessen in significance. These proposed amendments have been presented to the United States Supreme Court, which is expected to approve and submit them to Congress. Barring rejection by Congress, the rule changes will go into effect in December 2010. In all likelihood, these changes
will be adopted because most practitioners recognize and have borne the burden of the inefficiencies current practice has brought to the litigation process.