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Re: Depositions II

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> Thank you to all regarding advice on depositions.Certainly,a general
> reply from Mr McGhie,Esq. would be greatly appreciated.
> 
> Up to this point,I understand ,there are 2 types of
> witnesses:percipient and expert.The percipient need only testify to
> facts with no conclusions or opinions.He is entitled only to the
> statutory fee.The expert testifies to fact and his opinion.The
> expert is entitled to reasonable & customary fees.
> 
> 2 additional related questions are:
> 
> 1) As a percipient witness,how do you reply to a question such as :
> Is it your opinion,as stated in your report,that ....? Is a yes,no
> adequate?
>
I would answer this question with the simple statement. GET OUT YOUR
WALLET. The question does not ask for what you observed or what you
did. In my opinion it ask for your opinion. If your opinion is
relevant at all, it would only be relevant as an expert opinion. In my
opinion the question seeks your expert opinion and you would be
entitled to expert fees for answering it.

But as I stated, this is a difficult area. If the question is "Has you
opinion changed," then the question may be directed at discovering new
or additional observations not the opinion itself and a simple yes or
no answer would be appropriate. As a further example, consider the
question "Upon what factors did you base you opinion?" The question
does not seek your opinion or conclusions but seeks what you observed
and should be answered that way. If the questioner ask how you arrived
at a particular conclusion or opinion the attorney may be seeking a
mere description of the steps or process and not the opinions the
witness.

There is nothing that would prevent the attorney from asking expert
opinions, so long has the witness was qualified and paid as an expert.
Apparently, the attorney felt that he could get what he wanted or
needed without asking for expert testimony.

> 2) If subpoened as an expert witness, is it legal to refuse
> testifying if they do not agree to your 1/2 day minimum fee?
> 
This is difficult. Normally rates are hourly and you do not state that
you are in California. California provides for hourly or daily fees.
Daily fees shall only be charged for a full day of attendance at a
deposition or where the expert was required by the deposing party to
be available for a full day and the expert necessarily had to forego
all business he or she would have otherwise conducted that day but for
the request that he or she be available all day for the scheduled
deposition. The party taking the deposition must estimate the length
of the deposition and tender the expert's fee based on the anticipated
length of the deposition with the notice or tender that fee at the
commencement of the deposition.

Now the inevitable disclaimer. This post was intended as a discussion
of general principles applicable in California and not as advice
applicable to any specific situation. While the law in other
jurisdictions may be similar there are differences and one should
consult with a local attorney for specific advice applicable to their
specific situation.

Robert