Trial by Ambush

by James C. Chaney

Over the eleven years of my practice in Oregon — coming, significantly, after having spent the 1980′s practicing in urban southern California — I’ve had the same conversation over and over again with an out of state adjuster, risk manager or claims analyst at the outset of a case. Typically, “the conversation” happens when I’m asked to get that first set of interrogatories out right away, at which point I explain that here in Oregon, we don’t have interrogatories in state court. I then go on to explain some other features of the Oregon rules which are best known at the outset, and caution that the differences don’t stop with interrogatories. Other major differences include the following:

  • In many jurisdictions, treating physicians can be deposed, or can be contacted in some other way. In Oregon, while we can gain access to medical records, and in some cases written reports, pretrial contact with treating physicians, including depositions, is considered to be violative of the physician/patient privilege and as such is strictly prohibited.
  • In Oregon state court, not only is there no expert discovery, there is absolutely no requirement that the identities of experts be disclosed at all.
  • Under the Oregon rules, there is no mandatory witness disclosure, and surprise witnesses are a fact of life at trial.

As you can probably see from the title of this article, it all adds up to trial by ambush.

Having practiced in California for several years before coming to Oregon, and as a result being accustomed to a very strictly regimented set of pretrial procedures, I was frankly terrified when I headed into my first jury trial in the spring of 1992. But that experience, and my experiences in the decade which has passed since then, have led me to believe that our approach to jury trials is a good one, and is in fact a very economical way to resolve disputes, as long as you know where the pitfalls are. I’ll explain by exploring the above points one by one.

Interrogatories

First, keep in mind that many of the discovery devices which the Oregon rules do not allow are still perfectly acceptable in federal practice, so it’s not like Oregon lawyers don’t know what they are. We do indeed use interrogatories, but only when we go across the street, so to speak.

That being said, there’s not much that can be discovered through interrogatories which can’t discovered in some other way. Under the reforms across the country of the 1980′s and early 1990′s directed toward abusive written discovery practices, where they are allowed interrogatories are typically very limited in their number, scope and purpose. Much of what is typically sought through interrogatories — witness identities, addresses, and testimony summaries, for example — can be discovered in other ways.

The solution lies in carefully crafted document requests, careful review of the responses, and well thought out lines of questioning in deposition. In addition, we tend to make more extensive use of quality private investigators, where the case budget allows.

Treating physicians

In my former practice in California, a large part of my workload involved the defense of mental health professionals in malpractice litigation. It was not at all unusual for plaintiffs in those cases to have treated with multiple mental health providers prior to treatment with my client, and it was also fairly typical for there to have been serial relationships with mental health care providers after my client’s involvement in the treatment. Medical hospitalizations for suicide attempts and the like were also not unusual. Taking all of that together, it was not at all unusual to take a dozen or more doctor depositions in a fairly straightforward case.

Since coming to Oregon, I’ve come to appreciate that the depositions of treating physicians are largely unnecessary, and are a very expensive exercise considering what can be gained through them. If the doctor keeps good treatment notes, any experienced lawyer looking at those notes two or three years later should be able to determine exactly what happened in treatment. If the doctor makes the poor choice of keeping poor records, those records can only be fertile ground for cross-examination. The fact that I have been barred from all pre-trial contact with a doctor also gives me an opportunity to establish during cross-examination that I have never had a chance to speak with the doctor, and to show the jury in many cases we have never met or spoken in any context. It is been my experience that establishing these facts can gain sympathy from a jury, particularly where a doctor becomes difficult. It helps immeasurably in situations where a physician is being evasive, and refuses to answer what seem to be perfectly obvious questions to a layperson.

Experts

Here, things get a bit more difficult. As a case is developed through investigation and discovery, very often an element of gamesmanship enters into the relationship between counsel when it comes to expert witnesses. There are times when mutual exchanges of expert information are arranged in the interests of concluding a matter, and there are even occasions where one side or the other will elect to unilaterally disclose an expert report, if that party believes that it will be advantageous to do so. However, that is the exception rather than the rule, and most trial lawyers jealously guard both the identities of expert witnesses, and the details of any opinions which they may render at trial.

All of this is a lot less intimidating than it may seem. All that is required to meet an expert’s opinion is careful thought about your opponent’s case, and what he/she may need to put on in the form of proof. Also, your own expert can be a very valuable tool in hypothesizing about what an expert on the other side may say.

That is not to say that there aren’t a few exciting moments in trial which come from our approach to expert witnesses. I have gone through trials where I’ve asked an associate or my assistant to sit in the back of the courtroom when an opposing expert was called, so that her or she could scurry back to the office and start telephoning colleagues in the defense bar for information about the expert, or ideally for trial transcripts from earlier cases.

There are also advantages to this system which you might not expect. In my old practice in California, the only “experts” who testified regularly were doctors who never treated patients, architects who never designed buildings, and engineers who never designed or tested products. All they did was testify. I truly believe that part of this phenomenon came from the imposition on experts’ time and dignity which is caused by the process through which an expert is expected to write an extensive report which will be picked over by opposing counsel, and by which an expert is put through deposition for hours, and sometimes even days, at time.

Our system is not without its advantages. In Oregon, since experts know that they will not be subjected to the indignities of the discovery process, it is not uncommon for true experts in their fields to offer their services in litigation. I know it’s shocking, but it’s true.

Also, the crushing expense of the expert discovery process is avoided. I distinctly remember attending a deposition in a condominium defect case in southern California about 15 years ago, which was attended by 10 to 12 lawyers, as well as the court reporter and the expert structural engineer himself. As I sat through this deposition, I figured out that we were billing at a collective rate of over $2,000 per hour, and was left to wonder how much good we accomplished. I should also mention that this particular expert’s deposition lasted for six days.

Pre-trial witness disclosures

This is perhaps the most terrifying feature of trial by ambush. In federal practice, and under the court rules of most of the states in the country, parties are required to list witness identities well before trial, and in most cases to describe the substance of a witness’s testimony at the same time. In Oregon, if you haven’t discovered the identity of a witness and the substance of the witness’s testimony through either investigation or discovery, that your own problem. I have had the unpleasant experience in several trials of leaning over to my client after a witness is called to the stand, and asking if they knew who the witness was. Every Oregon trial lawyer I know has had the a similar experience.

But again, the pitfalls attendant to this feature of Oregon trial practice are fairly easily avoided. A well-taken deposition of plaintiff and of close family members in a personal-injury case will typically smoke out the identities of any known witnesses to an accident, or of any particularly close friends and family members who could be expected to testify regarding the impact of injuries. The same goes for business litigation cases; the thorough examination of the opposing party, and the opposing party’s key identified witnesses, will almost always result in a full disclosure of each witness who is expected to testify at trial.

When all else fails, the appearance of an unexpected witness forces Oregon trial lawyers to fall back on fundamental trial skills. Even in jurisdictions where every shred of evidence is supposed to be well known before it is brought out in front of a jury, witnesses who swore a light was green will testify in court that the same light was red, and good trial lawyers are left to deal with that. Also, this phenomenon forces critical examination of what is to be gained from cross-examination, and it is not at all unusual for an Oregon trial lawyer to quickly curtail cross-examination if he/she is unfamiliar with the witness, and is unsure of what surprises may still be in store in that witness’s testimony.

In short, our lack of witness disclosure forces better preparation, and forces the development of superior trial instincts.

 

To summarize, once you get used to our peculiar way of doing things, you wonder how you ever did it any other way. It’s quicker, cheaper, more fair (after all, both sides are left to wonder in the dark), and let’s us actually get the vast majority of our matters to trial in less than a year from the date of the filing of the complaint.