Most "seasoned" trial attorneys remember a day when, as a young associate, a scheduling conference came up on the calendar. A senior or head partner would hand you a file in the morning and tell you to cover the scheduling conference (usually that same day). The only instruction you were given was "get me 90 days for my witnesses and reports", and off you would go.
In today's ever-changing legal world, however, the scheduling conference should be viewed by counsel as the roadmap for your case. Therefore, to avoid future migraines, plaintiff's counsel should be proactive when it comes to the contents of the scheduling order.
What to request at every Scheduling Conference
When attending scheduling conferences I always request that judges add the following three items to their scheduling orders:
1. Any defense expert that examines the plaintiff must issue a written report;
2. The client does not have to fill out any forms or paperwork for any DME; and
3. Any defense expert who examines the plaintiff must be produced for deposition in the same location as the DME, or a mutually agreeable location in Wisconsin.
Most judges say that they have never been asked to do this before and may initially seem reluctant to include them. However, requesting that these items be included can prompt conversation between the judge and defense counsel as to why defense counsel should be held to these conditions.
Any Defense Expert Who Examines Plaintiff Must Issue a Written Report
The reason for requesting that any defense expert examining the plaintiff issue a written report is simple. No plaintiff's attorney wants to be put in a situation where their client is told to appear at a DME where an examination is performed, and the expert is then withdrawn without issuing a report. It is pretty apparent that the reason behind the withdrawal is that the examining physician did not render an opinion favorable to the defense. As a result, plaintiff's counsel is left to "fly blind" and take the expert's deposition without the benefit of a report. Blind depositions like this are rife for adverse testimony from the DME and present numerous difficulties in refuting the physician's testimony when a report has not been issued.
Once an expert has examined your client, it is my opinion that the defense should be prohibited from subsequently withdrawing said expert by labeling them a "consultant".
Plaintiff Is Not Required to Fill Out any Paperwork at DME
I have always instructed my clients that it is their obligation to show up at the designated time for the DME and be cooperative. When explaining to clients the purpose of the DME, I stress to them that they are not obligated to fill out any forms or paperwork. If the DME office does not have the necessary information or records, they have to speak with defense counsel and not our clients. These DME offices have numerous excuses as to why they need the forms/paperwork, so make sure your clients are prepared to rebut them. I always like the phone call on the day of the DME from the DME office saying the doctor cannot examine my client unless the forms/paperwork are filled out. My response is always the same, tell the doctor to put that it writing, date and sign it and fax it to me. I am still waiting for the signed note/letter from the DME.
Most clients are not prepared to recite their complete medical histories, and for that very reason they should not fill out any forms/paperwor
DME Must be Produced For Deposition in Wisconsin
Lastly, to avoid traveling out of state (can anyone say Minnesota) for the DME's deposition I now request the judge add the language about the defense making the DME available for deposition at the location of the DME. This request was prompted by various discussions regarding deposing two well-known DME's who travel the circuit in northern Wisconsin.
The rationale behind this request is quite simple -- the DME examined my client in X location, so it is only fair that the DME be produced in that same location for a deposition. This request saves you the time and effort of trying to track down the DME in Wisconsin and serve them with a subpoena. Further, it should be argued that the DME's deposition should take place in Wisconsin so that the DME is under the subpoena power of the court. If an issue arises over any unreasonable deposition fees, the court can then rule on any motion to set expert fees.
Whether or not the judge agrees with you, by raising these three points at the scheduling conference you are putting the court and defense counsel on notice that these could be potential problems, and it makes it very hard for defense counsel to argue against enforcement of these points later on when counsel was put on notice at the scheduling conference and they still went ahead and purposely acted in that manner.