Review of expert witness file before cross-examination

July 2008
By Hon. John A. Wittmayer, Multnomah County Circuit Court

Too often after direct examination of an expert witness we endure much delay while opposing counsel reviews the expert witness file before cross examination. Our judges have recently discussed how to make this part of the jury trial move along more efficiently. Judge Henry Kantor shared with us that it is his procedure to instruct the lawyers to have the expert's file available for review by opposing counsel during the break before the expert's direct examination. In other words, if you expect to call your expert at 11 a.m., the expert's file needs to be available to review by the other lawyer by mid-morning, and the court is likely to take a mid-morning break. Likewise, if you expect to call your witness first thing after lunch, the file needs to be available for review by noon. This may mean your expert witness must get her/his file to you in advance of arriving at the courthouse to testify. Judge Kantor acknowledges that sometimes there may be a need for relief from this requirement, which can be discussed on a case-by-case basis in advance. Judge Kantor's procedure seems like a good idea to me. It strikes a balance between the competing interests involved.