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Expert witness

Paramount, CA |
Filed under: Litigation

Can an expert witness file a declaration? Or do they have to testify in court?

Attorney Answers 5

Posted

Experts sign declarations all the time. Whether that declaration will be admissible at trial is another matter entirely.

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Posted

If you want the expert to provide a declaration in lieu of testimony at trial, you are not likely to get it in. The defense has the right to cross examine the expert.

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Posted

The general rule is that a witness must appear and be subject to cross-examination. A declaration would in all likelihood be excluded as hearsay. I have tried cases before judges (not jury trials) where the judge permits the declaration filed under the penalties of perjury to serve in lieu of direct examination to conserve time but the expert must be made available for cross-examination.

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2 comments

Asker

Posted

How can you make the expert available for cross-examination without having them be at the trial? Does that mean they have to be present at trial in case the other party wants to cross examine them?

Asker

Posted

If i file a subpoena, and also notify the other party by sending them the subpoena i filed, is there anything else i have to do to make sure my expert witness will be able to testify in court? Do i file a witness form too? (I already filed a witness list, do i need to update that witness list, or file a new one with my expert's name only?) And what if my expert says he will testify and i don't need to subpoena him, how do i notify the court and the other party?

Posted

Depends upon the court. Small claims yes. Economic litigation if the rules are followed, yes. Superior court normal rules, no, unless the parties agree.

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1 comment

Asker

Posted

It is a family law case, terminating patental rights, he has a public defender. How could i get the other party to agree?

Posted

If you are talking about trial, then as previous answers have suggested, it is unlikely that a declaration would be sufficient. But there are other circumstances where expert declarations are allowed, such as on a summary judgment motion. If you are dealing with an expert declaration in that context, you might need to take the expert's deposition and offer some transcript excerpts in opposition or you might need to hire your own expert to raise an issue of fact.

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