Tag Archives: Rule 26

Rocket Surgery? Designating Court Experts.

Expert witnesses are routinely used in Divorce cases.  Expert testimony covers a wide gamut of topics, including; Financial, such as appraisals or accounting,  Counseling, regarding fault grounds or custody, Medical, regarding diagnosis and/or treatment, Attorney Fees and other areas.

Rule 26 of the Mississippi Rules of Civil Procedure governs the procedures that litigants must follow in designating expert witnesses. “A party may through interrogatories require any other party to identify;”

  • Each person whom the other party expects to call as an expert witness at trial,

  • To state the subject matter on which the expert is expected to testify, and

  • To state the substance of the facts and opinions to which the expert expected to testify and

  • A summary of the grounds for each opinion. (MRCP 26 (A)(I)).

Further, “A party is under a duty seasonably to supplement that party’s response with respect to any question directly addressed to…the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the testimony.” (MRCP 26 (f)(1)(B)).

“In regard to matters relating to discovery, the trial court has considerable discretion.” Dawkins v. Redd Pest Control Co., 607 So.2d 1232, 1235 (Miss. 1992).

The Mississippi Court of Appeals has upheld the non-allowance of an expert, not properly disclosed, when the party intending to use the expert did not comply with the Rules of procedure.  In Mallet v. Carter, 803 So.2d 504 (Miss. App. 2002), the Plaintiff was prohibited from using an expert, and her case was ultimately dismissed, for dilatory designation of the experts and providing insufficient discovery related to the experts after the time in which to do so had expired.

Expert testimony can be critical to prove certain aspects, even in seemingly routine cases.  Make sure that you know who your experts are, why you are using them, what their opinions are , what those opinions are based upon AND disclose all of this information to the other side in a timely fashion.

Matthew Thompson is a family law attorney in Mississippi and frequently certifies witnesses as experts when necessary and has testified as an expert with regard to attorney fees.

Follow the blog: BowTieLawyer Visit the website: Thompson Law Firm

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms.

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Trial by AMBUSH!

One of the Court’s most important roles is to prevent Trial by Ambush.  Those episodes of Matlock where the secret witness or the real murderer are called to the stand at the last-minute and nobody knew, except for Ben, may make for good TV (or not), but it is not how it really is.

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Courts and the Rules of Procedure require full disclosure.  All witnesses must be disclosed prior to trial, all evidence, exhibits, and even persons who may not be witnesses, but that know about the case should be disclosed.  While it is not uncommon to receive documents or learn of witnesses at the last-minute, the Court may prevent those from being used.

Rule 26 of the Mississippi Rules of Civil Procedure governs the procedures that litigants must follow regarding discovery methods. 26(f) obligates a party to “seasonably” supplement that party’s responses to interrogatories and other discovery if the parties know the answer has changed or circumstances are such that a failure to amend is in substance a knowing concealment. M.R.C.P. 26(f)(2).

A failure to seasonably supplement responses may prevent this “new” evidence from being used. If a party was specifically asked for the documents and tangible things they intended to use at trial, and new information was not produced,  the Court can prevent this Trial by Ambush.

A Court’s most basic duty is to provide for a fair trial and to prevent trial by ambush. “We have long been committed to the proposition that trial by ambush should be abolished, the experienced lawyer’s nostalgia to the contrary notwithstanding.” Harris v. General Host Corp., 503 So. 2d 795, 796 (Miss. 1986).

These surprises leave no meaningful opportunity to challenge them or to investigate the information they purport to contain and summarize.

Matthew Thompson is a family law attorney in Mississippi and warns client that if you got it and intend to use it, you got to disclose it.

Follow the blog: BowTieLawyer Visit the website: Thompson Law Firm

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.