Proposed Illinois Rule Change Promotes Local Expert Witnesses

Expert witnesses may need to travel to the county were the case will be heard rather than being deposed in their own county under changes to the Illinois Supreme Court Rules being considered for proposal by a Chicago Bar Association rules committee.

The proposal has been floated as a way to end what some see as gamesmanship by attorneys who retain experts in distant locations solely to foist travel expenses on opposing counsel, or force counsel to settle for telephonic or video depositions.

The proposed change would instead place the burden of travel expenses on the party who retains the expert, in some cases limiting the number of potential experts to those a party can afford the travel expenses to retain. Those who oppose the rule change say that it could be especially difficult for cases in more remote parts of the state.

Supporters of the rule change argue that it will reduce litigation costs overall as it should be less costly for one expert witness to travel versus two or more attorneys.

That argument overlooks the current option of deposing the opposing party's expert by telephone or video conference. Since most attorneys see in-person depositions as preferable, reliance on telephone and video conferencing options would likely be reduced, potentially increasing average litigation costs. Those who oppose the rule changes say that, if opposing counsel want face-to-face depositions, they should be the ones who pay for it.

Additionally, the rules committee is proposing changes to Rule 213 that would would exempt draft expert reports, disclosures and communications from disclosure, except for fee agreements, billings and payments. The proposal was made purportedly to make Illinois rules more like the federal rules of civil procedure and eliminate alleged gamesmanship by experts and attorneys regarding the existence of such drafts.

Those opposed to the Rule 213 change argue that the federal rules still allow for the discovery of the “development, foundation, or basis” of opinions offered by experts, which the state rule would not allow. As well, they argue that the rule change may lead to greater litigation because what constitutes a draft report has been in contention in past federal litigation.

The opposing views fall somewhat along the lines of those who tend to be attorneys for plaintiffs and those for defendants.

For expert witnesses, the further they are from Cook County, the more to their detriment.