You are in a very tough spot, as you already know. No reputable lawyer would inform his client only weeks before trial that experts were needed. But changing lawyers at this stage is going to be almost impossible. To prove up a product liability case, experts must be involved from the very beginning. Generally one doesn't even file a products case without an expert opinion and that costs money. Whose responsibility it is to pay what depends on the terms of the retainer. Read your retainer contract and see what it says. Retainers should be very specific about responsibility for disbursements, but frequently they are not. I suspect that what will happen on Monday is that your lawyer will either try to withdraw from the case, or try to get you to settle for a figure that you will not be happy about. Before you say no to a settlement, bear in mind that you apparently have problems not only with proving the product defect, but also proving the injury. The lawyer may not have been aggressive enough to suit you, but in my experience if lawyers think they have a great case they work a lot harder than in cases they think are marginal. You should ask your lawyer flat out if you have a good case, and if not why not. Be prepared to listen. Lots of clients and some lawyers fall in love with their cases and can't be objective about them. You are in no position to indulge in wishful thinking at this point.
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Mr. Brophy has given you very good advice in your most unfortunate situation.
You can learn more about me by clicking on my Avvo profile. Disclaimer: Please note that this answer does not constitute legal advice. It is merely intended to provide general information to aid the poster in finding answers to the problem posed. This answer does not create an attorney-client relationship. In most cases, it is best to contact an attorney directly to find answers to your problems.
It appears you were represented by counsel for this case, but are now representing youself. Is that true?
In any event, the answer is "probably not" if your goal is to designate expert witnesses.
In California litigation, the parties are entitled to call expert witnesses at trial. In order to ascertain whether the opposing party intends to call expert witnesses (as well as their identies and their written reports, if any), you must also disclose yours.
The demand for an exchange of expert witness information must be made no later than the tenth (10th) day after the initial trial date has been set or 70 days before that trial date, whichever is closer to the trial date. (See Code of Civil Procedure § 2034.220.)
The exchange consists of:
1) a mutual and simultaneous exchange of a list containing the name and address of any natural person, including one who is a party, whose oral deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial [Code Civ. Proc. § 2034.210(a)]. If any expert designated in the expert witness list is a party or an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, the designation of the witness must include or be accompanied by an expert witness declaration under Code Civ. Proc. § 2034.260(c) [Code Civ. Proc. § 2034.210(b)]; and
2) a mutual and simultaneous production, for inspection and copying, of all discoverable reports and writings, if any, made by any expert described in Code Civ. Proc. § 2034.210(b) in the course of preparing the expert's opinion [Code Civ. Proc. § 2034.210(c)].
A party who has already exchanged expert witness information may seek leave to add new experts or to augment the topics on which the experts designated in the original exchange will testify at trial. (California Code of Civil Procedure § 2034.610(a)(1), (2); see Jones v. Moore (2000) 80 Cal.App.4th 557, 565; Richaud v. Jennings (1993) 16 Cal.App.4th 81, 90-91.) Pursuant to California Code of Civil Procedure § 2034.610(a)(1), (2), a motion to augment is the exclusive means for adding additional expert witnesses.
The court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:
(1) the court has taken into account the extent to which the opposing party has relied on the list of expert witnesses and determines that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits; and
(2) the moving party either would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness, or failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has both: sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony and promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action; and
(3) the moving party offers to make the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410).
(California Code of Civil Procedure § 2034.620.)
The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.
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