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Re: Depositions

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> This is addressed to the group and the your honor esq. as well.  If
> the engineer is deposed for an inspection that (s)he did for a
> client then (s)he would remember what's in the written report and
> nothing else.  Engineers work for a living and don't leech off the
> rest of the economy by filing bogus construction litigation law
> suits like the lawyers do. 

Do I detect a little hostility? :-)

> We are very busy and don't remember details other than those
> contained in the written report. Unless of course the fee is enough
> to jar the memory. If you want expert testimony, then you're going
> to have to pay for it. 

There is no disagreement that if expert testimony is sought then the
expert is entitled to be compensated accordingly. But the original
post was based upon the representation that expert testimony was not
being sought. 

> You can read an uncertified copy of the report for free and keep
> your lousey $45.00.

The report may be privileged or protected by what is known as the work
product doctrine.

Being required to testify as a percipient witness is one of the 
obligations of citizenship. Would you expect to be paid as an expert
engineer if called upon to testify on the color of the traffic lights
at an intersection where you observed and accident? What if you were
the driver who had the green light. Would you expect to pay an
attorney bystander as an attorney or and ordinary witness. Even if the
attorney had an expert opinion as to the negligence of the parties,
you would insist that the attorney testify as a percipient witness.
You would rightly argue that all you wanted to know was the color the
light and not his opinion and therefore the attorney would not be
entitled to more than ordinary witness fees.

>From my reading of the original post, I got feeling that the 
original poster thought that the attorney was attempting to solicit
his expert testimony without paying for it. Apparently you reached the
same conclusion. In such a situation, the opposing attorney could
object that any question which sought the engineer's expert opinion
rather than his observations, would exceeded the scope of the
subpoena, and since the witness would not have been qualified as an 
expert, the questions would also be improper because of a lack of 
foundation (Qualification of the witness as an expert). Any attempt 
to then qualify the witness as an expert would make the attorney who 
issued the subpoena liable for expert witness and very likely 
sanctions for abuse of the discovery process.

In practice, the difficulty is in drawing and understanding the line
between observations and expert opinion. I am working on a post that I
hope will help clarify the issue.

Robert