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Re: Depositions II

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The replies posted by Russ Nester and my friend Robert McGhie appear to me
to be almost completely in accordance with authoritative sources, a little
of which seems worthwhile to quote and comment on: 

First, the Code of Civil Procedure sect 2034(i)2 lumps professional
engineers who were "involved with the original project design" in with
"treating physicians and surgeons" as special categories of persons who must
be paid a "reasonable and customary hourly or daily fee" (ie, an expert
witness fee) even if they were NOT retained or designated by a litigating
party as an expert "for the purpose of forming and expressing an opinion in
anticipation of the litigation or in preparation for the trial of the
action". This expert witness fee is payable IF in deposition this
professional engineer "is asked to express an opinion within his or her
expertise and relevant to the action or proceeding". The key word here is

Next, the California Expert Witness Guide, published by Continuing Education
of the Bar, Berkeley CA, for attorney use, explains more in several places
in its Chap 10 to distinguish "opinion" from low-paying percipient
testimony. One such note, although written about Physicians rather than
equivalently favored Engineers, may be useful:

        "Counsel noticing the deposition of the treating physician...must
pay the expert's reasonable fees if the deponent is to be asked during the
deposition to express an opinion or give factual testimony regarding the
past or present diagnosis or prognosis made by the deponent, or the reasons
for a particular treatment decision made by the deponent. The witness would
not be considered to be an expert due expert witness fees if the testimony
requires the deponent only to read words and symbols contained in the
relevant medical record or, if those words and symbols are not legible to
the deponent, to give an approximation of what those words or symbols are.
See CCP Sec2034(i)(2)."  (at CEB sec 10.8) 

Applying the same to engineering, it would seem that if an engineer were
asked to explain design decisions previously made, or to explain
recommendations expressed in a previously made engineering report, rather
than merely recite without explanation what the report says, then the
engineer is owed expert witness fees the same as the doctor would be in the
CEB note quoted above. 

This is if, anything, more favorable to your being paid as an expert than as
described by Robert, due to the special provision in CCP sec2034(i)(2) for
our profession.

This relevant CCP section also appears to me to provide that the expert fee
hourly rate is owed for the entire time the deponent is kept at the
deposition site, even if only one "opinion" question is asked and answered. 

As usual, you should review sources and confirm their meanings on your own
or through counsel.

Charles O. Greenlaw, SE    Sacramento CA
At 04:27 PM 8/13/98 EDT, you wrote:
>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?
>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?
>Thank you again,
>Ricardo Arevalo SE