Federal Rules of Civil Procedure and Federal Rules of Evidence - Selected Text Relevant to Forensic Economic Testimony

By Slesnick, Frank L. | Journal of Legal Economics, October 1, 2016 | Go to article overview

Federal Rules of Civil Procedure and Federal Rules of Evidence - Selected Text Relevant to Forensic Economic Testimony


Slesnick, Frank L., Journal of Legal Economics


It is useful for forensic economists to understand some of the relevant portions of Rule 26 of the Federal Rules of Civil Procedure (FRCP) and Rules 702, 703, and 705 contained in the Federal Rules of Evidence (FRE). The information was accessed during fall 2016 and represents rulings as of 2015. The outline below incorporates some stand-alone headings, which do not pertain to forensic economics. These headings were included to provide continuity for reading the relevant portions of the rules. Reprinted here are sections of these rules, with complete rules downloadable at the following websites:

FRCP: http://www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure

Rule 26: http://uscode.house.gov/view.xhtml?path=/prelim@ title28/title28a/node85/titleV&edition=prelim

FRE: http://federalevidence.com/rules-of-evidence

Rule 702: http://federalevidence.com/rules-of-evidence#Rule702

Rule 703: http://federalevidence.com/rules-of-evidence#Rule703

Rule 705: http://federalevidence.com/rules-of-evidence#Rule705

Federal Rules of Civil Procedure - Rule 26. Duty to Disclosure; General Provisions Governing Discovery

(a) Required Disclosures

(1) Initial Disclosure

(2) Disclosure of Expert Testimony

(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, and 705.

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report - prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving the expert testimony. The report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of compensation to be paid for the study and testimony in the case.

(3) Pretrial Disclosures

(4) Form of Disclosures

(b) Discovery Scope and Limits

(1) Scope in General

(2) Limitations on Frequency and Extent

(3) Trial Preparation: Materials

(4) Trial Preparation: Experts

(A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.

(B) Trial-Preparation Protection for Draf t Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosures required under Rule 26(a)(2), regardless of the form in which the draft is recorded. …

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